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A TREATISE 



i^ 



OK 



GOYEE^^TMENT 



AND CONSTITUTIONAL LAW 



BEING AN INatJIRY INTO THE 



SOURCE AND LIMITATION OF GOVERNMENTAL AUTHORITY, 



ACX;OKDINQ TO THE 



AMERICAN THEORY 



By JOEL TIFFANY 



y 



ALBANY N. Y. : 

W. C. lilTTLE, LAW BOOKSELLER, 

4«> BROADWAY 
186T. 



Entered according to act of Congress, in the year eighteen hundred and 

sixty-seven, 

By JOEL TIFFANY, 

in the Clerk's office of the District Court of the United States for the Northern 
District of New York. 



/ 



^-t c 



PREFACE. 



There are two theories respecting the source of 
governmental authority, which may be denominated 
the Monarchical and the Democratic. The first, is that 
of the monarch, who claims authority to govern by 
^^ divine rigliV The second, is that of the people, 
who claim that all governmental authority proceeds 
from them ; that governments derive their authority 
from the consent of the governed, and are amen- 
able to them. This latter theory is denominated 
the American Theory ; and the following treatise has 
been constructed upon such hypothesis. 

The fundamental principles adhered to in this treatise 
are : That the people are the source of all gov- 
ernmental authority in the state or nation ; — that they 
are the authors and proprietors of government, 
which, at most, is an institution created for the spe- 
cific purpose of exercising such public authority 
as the people instituting the government see fit to 
confer; — that the public authority is the authority 
of society taken as a whole j — that the largest orga- 
nized civil society is that of the nation; — that the 
nation, as an organized body, is absolutely sovereign 
in its authority to institute and endow its government ; 
and, is independent of all other governments in its 



/o 



iv PREFACE. 

organic structure, and self-governing authority; — that 
national sovereignty must necessarily extend over every 
inch of its territory, and over all the inhabitants 
thereof; and must include every iota of governmental 
authority Tvithin its limits; — that the nation has sove- 
reign authority to institute as many, and such gov- 
ernments to administer its authority as it deems wise 
and good; — and that none can administer within its 
territorial limits, except by its expressed or implied 
authority. This theory is applied to the general and 

state governments in the United States. 

Joel Tipfant. 
Albany, 1867. 



TABLE OF CONTENTS. 



PART I. Inthodtjctort. 

CHAPTER L 
Of the civil equality of all men, 11 

CHAPTER II. 
Of the natural and inalienable rights of man, 16 

CHAPTER III. 
Of the origin of government, 22 

CHAPTER IV. 
Of the nature of governments and their natural rights, 29 

PART n. 

CHAPTER I. 

Of the United States as a nation, 41 

CHAPTER ir. 
Of the United States as a government, 53 

CHAPTER III. 
Of the government of the United States, 58 

CHAPTER IV. 
Of the constitution of the United States — Principles of interpre- 
tation, " 65 

CHAPTER V. 
Of the constitutional structure of the national or general govern- 
ment, '76 

CHAPTER VI. 
Of the constitution of the United States — Its preamble, 83 

CHAPTER VII. 
Of the congress as the national legislature — The house, 105 

CHAPTER VIII. 
Of the legislature — The senate, 138 

CHAPTER IX. 
Of legislative powers and duties, 155 

CHAPTER X. 
Of express powers of congress — Taxes, duties, imposts and ex- 
cises, 1*71 



vi _ CONTENTS. 

CHAPTER XL 
Express powers — On the subject of naturalization and brankruptcy, 204 

CHAPTER Xn. 
Express powers — On the subject of coining money, etc., fixing standard of 
weights and measures, estabUshing p6st-ofSces and post-roads, encour- 
aging science and the useful arts, punishing piracies and felonies, etc., 
committed on the high seas, and offenses against laws of nations, 220 

CHAPTER Xni. 
Express powers — On the subject of the war powers of the general gov- 
ernment, 244 

CHAPTER XIY. 
Prohibitions and restrictions of the constitution, 266 

CHAPTER XY. 
Of the states as political organizations — Their office, duties and powers, . . 298 

CHAPTER XVI. 
Of the office of president and of vice-president — Their duties and powers, 326 

CHAPTER XVII. 
Of the judicial powers of the general government, 356 

CHAPTER XVIII. 
Of inter-state administration, 369 

CHAPTER XIX. 
Of amendments to the -constitution, 387 



CONTENTS OF APPENDIX. 



No. 


1. 


No. 


2. 


No. 


3. 


No. 


4. 


No. 


5. 



The first step of the colonies toward an independent nationality, . 3 
The commission of George Washington from the congress of the 

colonies, 4 

Declaration of independence of the thirteen colonies, 5 

Articles of confederation, and the ratification of the same, 10 

Eecommendation by the congress, to the states, of a tariff of 

duties for purpose of a revenue, 20 

No. 6. An address by the congress to the states accompanying their 

recommendation, 23 

No. 7. A second or further recommendation upon the subject, 30 

No. 8. Report of commissioners of the states of Virginia, Delaware, 
Pennsylvania, New Jersey and New York, assembled at 
Annapolis, Md., September 14, 1786, to the several legisla- 
tures of their respective states, upon the subject of a system 
of commercial regulations, and other important matters, .... 32 
No. 9. Resolution of congress calling a convention of delegates, to be 
appointed by the several states, to meet at Philadelphia on 
the second Monday of May, 1787, for the prupose of revising 
the articles of confederation — and the list of members 

appointed, 35 

The credentials of the several delegates, 37 

The assembling of the convention, 62 

The organization of the convention, and their report of a draft of 

a constitution of government 63, 64 

The ratification of the constitution by the several states, 77 

Amendments to the constitution submitted by congress to the 

several states, , 112 

The ratification of the same by the several states, 114 

Further amendment submitted by congress to the states, 117 

Notice of ratification by the president, 119 

Mode of changing territory to states — Louisiana, 120 

Dissenting opinion of Justice Miller in case In re Garland of 
Arkansas, on motion for leave to practice as an attorney in 

supreme court of United States, 123 

No. 20. Constitution of United States (with all amendments), 134 



No. 


10. 


No. 


11. 


No. 


12. 


No. 


13. 


No. 


14. 


No. 


15. 


No. 


16. 


No. 


17. 


No. 


18. 


No. 


19. 



INTRODUCTORY. 



OF GOYEENMENT. 

The American Theory. 

SECTioiJf 1. When the people of the American colonies 
had determined to sever the political ties that bound 
them to the British government, and to establish for 
themselves an independent political existence, they 
asserted certain fundamental principles as the basis of 
their right to do so ; and they specified certain violations 
of those principles by the British crown as a justifica- 
tion of their conduct in throwing ofi" their allegiance to 
that government. 

g 2. In their Declaration of Independence, the repre- 
sentatives of the colonies, in Congress assembled, in 
the name and by the authority of the good people of 
the colonies, put forth, among others, ' the following 
principles, as fundamental to the establishment and 
maintenance of just governments: 

" We hold these truths to be self-evident : That all 
men are created equal ; that they are endowed by their 
Creator with certain unalienable rights; that among 
these, are life, liberty, and the pursuit of happiness ; that 
to secure these rights governments are instituted among 
men, deriving their just powers from the consent of the 
governed ; that whenever any form of government be- 
comes destructive of these ends, it is the right of the 
people to alter or abolish it, and to institute a new gov- 
2 



10 INTRODUCTORY. 

ernment, laying its foundations on sucli principles, and 
organizing its powers in sucli forms, as to tbem sliall 
seem most likely to effect their safety and happiness ; 
that when a long train of abuses and usurpations, pursu- 
ing invariably the same object, evinces a design to reduce 
them under an absolute despotism, it is their right and 
their duty to throw off such government, and to provide 
new guards for their future security." (See Dec. Am. 
Ind.) 

2 3. The principles thus promulgated by that Declara- 
tion were accepted by the American people, after mature 
deliberation and full discussion ; and to maintain them 
they pledged life, fortune and sacred honor, and fought 
the battles of the revolution. 

§ 4. The grounds upon which they based their right to 
dissolve the political bands that bound them to Great 
Britain were embraced in the following affirmations of 
principles and rights : 

1. The civil equality of all men. 

2. Life, liberty, and the pursuit of happiness are 
gifts from God to man, and, therefore, the natural and 
unalienable right of all. 

3. Governments derive their just powers from the 
consent of the governed, and are established for the pro- 
tection of these rights. 

4. When these governments become destructive of 
the ends for which they are established, they act without 
authority, and the people may resist and overthrow them. 

5. When a government evinces a design to disregard 
the ends of justice, and seeks to reduce its subjects under 
an absolute despotism, it is the duty of the people to 
overthrow it, and establish new guards for their future 
secmity. 



OF GOVERNMENT. H 

CHAPTER I. 

THE CIVIL EQUALITY OF ALL MEN. 

" We liold these truths to he self-evident, that all men are 

created equals 

g 5. This puoposition separates man from acquire- 
ments, and considers him as possessed only of natural 
endowments ; deriving them, with his existence, from 
God ; as having God's warrant for that which he gave 
to him, and made indispensable to the accomplishment 
of a perfect destiny. It aflBrms in simple language, 
man's natural right to the natural means of supplying 
liis natural necessities. That in these respects, all men 
are created equal. 

g 6. Man's creation under the divine goTernment as a 
physical, social, moral, intellectual and religious being, 
is to be deemed conclusive evidence of his right to 
exist ; and, hence, of his right to all those beneficent 
provisions which have been made indispensably neces- 
sary to the maintenance of such existence, as a 
physical, social, moral, intellectual and religious being. 

§ 7. Man's natural rights are indicated by his natural 
necessities. As a physical being he is so constituted 
that he must have the power of locomotion, to maintain 
himself properly and perfect his physical and other facul- 
ties. He is so constituted, naturally, that he must walk 
because he cannot fly ; and he must walk upon the 
earth because, naturally, he cannot tread the air or 
walk upon the water. Therefore, these natural neces- 
sities become indications of his natural rights. If his 
nature and constitution compel him to walk upon the 
earth, he has an indisputable right to walk upon it ; and 
no one is authorized to question that right.^ 

1 Necessity, when imposed upon us by the very constitution of our being, ia 
above all conventional law. If the Autlior of our being has given us an exist- 
ence upon the earth, and has made us constitutionally subject to certain 
necessities looking to the development, continuation and perfection of our 
existence, and has provided for us the means of supplying those necessities, 
he has, thereby, given us a perfect right to the use of those means; a right as 



12 INTRODUCTORY. 

5 8. Again, man is so constituted that lie must breatlie 
the pure air wliicli God has i)rovided, to maintain a 
healthy existence. It is a necessity which God has 
Imposed upon him, and He has provided the ax)pro- 
priate supply free of expense. Therefore, man has an 
unalienable right to breathe the pure atmosphere of 
heaven, and he has God's warrant of authority for the 
same. Thus it is in respect to the sunlight, the rains 
and the dews, etc. 

S 9. Ma<n must draw his physical supplies from the 
earth, gathering them from the gardens of nature as 
supplied without the labor of man, or produced through 
cultivation by his labor. In either case the supply must 
come from the earth. Hence, man has a natural right 
to have access to the bosom of the earth, that he may 
draw his necessary supplies therefrom. 

§ 10. To maintain his existence and accomplish his 
destiny, man must exercise in a proper manner, the 
faculties and powers with which he is naturally endowed. 
If he must draw his supplies from the earth, he must be 
permitted to exercise those faculties and powers by which 
they are to be produced or obtained ; and he must be 
permitted to possess and appropriate the supplies, thus 
obtained by his own labor or creation, to his own use to 
supply his needs. 

g 11. By thus making the necessities which God has 
imposed upon man, a clear indication of his right to 
use the natural means provided for their supply, we 
arrive without difficulty at the basis of man's natural 
rights, and, hence, at a just jjerception of their natural 
equality in all men.^ 



absolute as existence itself. The Almighty has not created man upon the 
eartli, and by the very constitution of his existence compelled him to derive 
his physical subsistence therefrom, without, thei-eby, giving him an unaliena- 
ble right to have access to the earth that he may draw his supplies thence. 
Hence, man's natural right to the use of the eartli as a means of supplying his 
natural necessities, may be claimed as appurtenant to his existence. 

1 To make an inherent necessity an indication, or basis even, of a right, 
either in the individual or in the state, is no new doctrine. If an Individual or 
Btate has a right to exist, he or it has, as a necessary incident to such right, the 



OF GOVERNMENT. 13 

§ 12. The affirmation that all men are created equal 
and are endowed by their Creator with certain unalien- 
able rights, is an assertion that all men having the same 
origin, the same ultimate destiny to seek, and the 
same means by which to attain that destiny under the 
divine government, have the same natural necessities ; 
and, hence, the same natural right to supply them. 
And, therefore, the power which cannot dispense with 
these necessities, has no authority to deny ov ques- 
tion these natural rights. 

g 13. These natural rights are not only equal in all, but 
they are unalienable. Until man can become superior 
to his necessities, and can dispense with tlie means of 
supplying them, there is no consideration by which he, 
while he continues to exist, can separate himself from 
his right to seek their supply. Therefore, his natural 
rights are as unalienable as his natural necessities are 
constant. How far these rights may become forfeited 
"will be considered when man is introduced into society 
and comes under the higher law of social necessity. 

g 14. The doctrine of the natural equality of all 
men, as indicated by their natural constitutions, implies: 
1. That all men have a common origin, and a common 
destiny ; and possess in common the natural means by 

authority of the Author of that existence to use all necessary and just means 
to maintain and defend that existence. When President Jefferson assumed 
that France must not possess the territory of Louisiana, and occupy New 
Orleans, and that to do so would necessarily involve the two countries in war, 
he based the morality of his position upon the necessity of the case : to wit, 
the right on the part of the United States to do that which was indispensable 
to self-iDreservation. (See Life of Jefferson, 30, pp. 7, 8 and 9; see also his mes- 
sages on the purchase of the Louisiana territory ; see also 2^ost, .) 

Says PuFFENDORF : " Since human nature agrees equally to all persons, and 
since no one can live a sociable life with another who does not own and 
respect him as a man, it follows as a command of the law of nature, that every 
man should esteem and treat another as one who is naturally his equal, or one 
who is a man as well as he." (Book ill, ch. 2, § 1.) Says Mr. Barbeyrac, in his 
note to the same : " For every one having a perfect right to expect that he be 
regarded and treated as a man, he that doeth otherwise with him does him a 
real damage. This duty being founded on an immovable condition, namely, 
that men should be used precisely as men, is not only of general, but of per- 
petual obligation ; insomuch, that notwitlistanding all the inequality by the 
changes and diversity of addition, titles and degrees, the rights of natural 
equality always remain immovable, and agree to every one in relation to 
another, whatever condition he is in." 



14 INTRODUCTORY. 

which that destiny is to be accomplished ; 2. That it is 
their common right to use these means without let or 
hinderance for the accomplishment of that destiny. 
And as all are to unfold and perfect, if at all, under the 
divine government by obedience to the same laws, all 
have a natural and unalienable right to be permitted to 
obey those laws, physically, intellectually, morally and 
religiously. 

g 15. From these considerations it follows, that all men 
are created equal ; equal in coming from the hand of the 
same Creator; equal in being possessed of the same 
natures, physical, intellectual, social, moral and religious ; 
equal in having before them the same destiny to seek, 
to wit, the perfection of each of these natures ; equal in 
deriving with their existence, from the hand of their 
Creator, the right to use the means provided for all for 
the unfoldment and perfection of these natures. 

g 16. The natural equality of all men does not imply 
that all have the same advantages which depend upon 
adventitious circumstances. Under the divine govern- • 
ment, the constitution of the son is derived through the 
constitution of the sire ; and the effect not unfrequently 
extends to the third and fourth generations, called in the 
decalogue, " visiting the iniquities of the fathers upon 
the children." This must be so under that government 
by which individualization is carried forward. It is in 
obedience to that law by which the individual can pro- 
gress from the less perfect to the more perfect. If the 
sire could not transmit his infirmities, he could not 
transmit his excellencies to his child. The susceptibility 
to improvement implies the susceptibility to retrogres- 
sion, which is simply susceptibility to change of con- 
dition.^ 

1 Under the divine government, the laws of generation seem to be uniform, 
which are, that the offspring shall be begotten into the likeness of the parent ; 
that is, every element, attribute and faculty of the parent is imparted to the 
offspring. This principle is manifest in the production of individuality in 
the several kingdoms. 

The child necessarily derives its vital and mental constitution through its 
parents, and especially its mother. When there are no influences to compel a 
deviation, its vital and spiritual constitution must be in harmony with that of 



OF GOVERNMENT. 15 

g 17. The doctrine of tlie natural equality of all men 
implies, that, however weak, feeble or imperfect may be 
the physical constitution of the individual at birth, 
there are natural means by which it may be improved ; 
and the individual has the natural right to the use of 
those means for its improvement and perfection. The 
same implication is to be made also in respect to the 
intellectual, social, moral and religious constitution of 
the individual. He has a natural right to the use of all 
his powers and faculties to improve his condition, and 
to seek a perfect destiny. If they are naturally weak 
owing to unfavorable conditions attending parentage 
and infancy, so much greater the necessity that he 
enjoy all the means at hand, and that he be permitted 
to exorcise all the faculties and powers with which he 
has been endowed to seek his better condition and 
higher destiny. The doctrine is, that, however unequal 
the advantages at the commencement of the race, each 
has an equal right to use the means God has given him, 
to win the prize.^ 

the mother ; for, during the period of gestation, no influence can reach the 
infant except through her. Hence, ordinarily, the new-born infant is a record 
of the influences controlling the mother during the period of gestation. Wlien 
the influence is of a marked character, it is recognized by ordinary observers. 
Such are instances termed "marking children." In families the diflerences 
which characterize children of the same parents, may be accounted for by the 
difference of condition in parents, and of influencing circumstances attending 
the respective periods of the generation, gestation and birth of their children. 

This susceptibility to influences afiecting the character of the oflspring is 
incident to the law of progress. All individualities are produced under general 
and special conditions and relations to outward influences. General condi- 
tions and relations mark their general character ; and special conditions and 
relations mark their speciflc character. Thus arise classes, orders, genera, 
species and varieties of individuals in the several kingdoms, each gradually 
advancing toward perfect individuality. From the lowest to the highest these 
advancing forms can be traced, perfecting in individuality at every step. 
Along the mighty chain, connecting the lowest with the highest, no link is 
absent ; the chain is unbroken. Each individuality is developed under con- 
ditions peculiarly its own, and advances only with advancing conditions. It 
follows, necessarily, that in respect to physical and mental constitution, in 
respect to speciflc endowments, those only can be born equal who are equal 
m all these accidents of parentage, ante-natal and natal conditions and influ- 
ences. But these only affect state and degree of endowment, which are not 
counted in the scale of natural rights. They belong to education and acquire- 
ment. 

1 " For, as in well ordered commonwealths, one subject may exceed another 
iu riches, or in honor, but all a,re eg^ual sh£tr§vs ih the common liberty ; so, 



16 INTRODITCTORT. 

CHAPTER II. 

Life, liberty and tlie right to seek one's oivn hajypiness, are 

gifts from God to man ; and therefore the natural and 

unalienahle right of all. 

g 18. This proposition necessarily follows the con- 
clusion, that life, liberty and the right to seek a perfect 
destiny are incident to the right to exist. It also follows 
the conclusion, " that all men are created equal," and, 
hence, are equally entitled to that which is essential to 
their well-being and destiny. The proposition itself is 
so self-evidently true, that it cannot be made more cer- 
tain by argument. It belongs rather to that class of 
conscious aiSrmations called axiomatic truths, than to 
that other class which are ascertained through a process 
of ratiocination. * 

g 19. If, however, one were disposed to deny or ques- 
tion man's natural right to life, liberty, etc., and to set up 
an authority to the contrary, he would be obliged to show 
in some other being a superior right which must neces- 
sarily be sacrificed or endangered, by the existence of 
this right in man. Eor if this right be essential to the 
existence, well-being and final destiny of man, and if 
it does not conflict with any equal or superior right in 
another being, it cannot be denied or questioned. 

S 20. Whatever is the natural and unalienable right of 
one man, is the natural and unalienable right of all men. 
For when it is demonstrated that one man is immortal, 
it is to be assumed that all men are so, unless exceptions 
can be pointed out. When it is admitted that life, lib- 
erty, &c., are the natural and unalienable rights of one 
man, there appearing to be no exception, it is to be 
assumed that they are, likewise, the natural and unal- 
ienable rights of all men. 

under this regulation of nature, how much soever a man may surpass his 
neighbors as to bodily or intellectual endowments, he is still obliged to pay all 
natural duties as readily and fully as he expects to receive them ; nor do thoso 
advantages give him the least power or privilege to oppress his fellows." (Ptjf- 
FENDOEF, B. 3, eh. 2, g 2.) 



OF GOVERNMENT. 17 

§ 21. Again, whoever asserts that one man has natural 
rights superior to another, and before which the rights 
of others must yield, assumes an affirmative which 
cannot be admitted, until it is clearly and logically 
proved. If he has any special claim to the natural pro- 
visions which God has made for supplying the needs of 
his creatures not possessed in common by his fellows, he 
must produce his charter from the Almighty, and show 
by evidence that cannot be questioned, his superior 
origin, aim and destiny. 

g 22. The natural necessities of all men being the 
same, their natural rights are likewise the same. And, 
until it can be shown that a i3articular man has natural 
necessities not common to the race, it cannot be claimed 
that he has natural rights not common to all. In short, 
until it can be demonstrated that one man has a different 
origin from another, and is sustained by different means, 
and has a different destiny to accomplish, it cannot be 
claimed that he has been endowed with different and 
superior rights to others. 

g 23. The natural rights of man, as indicated by his 
natural necessities, are limited only by the equal rights of 
others; and the limit can generally be ascertained by the 
inquiry, " Should all others claim and exercise the same 
natural rights, would there necessarily be any conflict?" 
For no one can justly claim a natural right so broad that 
he cannot accord the same to all others ; and when he 
does so, he is trespassing upon the common rights of the 
race ; and he thereby authorizes them, in that respect, to 
trespass upon him. Therefore, in defining the sphere 
of individual rights, care must be observed to make the 
definition broad enough to meet the needs of the indi- 
vidual, and yet not so broad as to conflict with the like 
rights in others. Eight cannot conflict with eight, 

NOR CAN TRUTH CONTRADICT TRUTH.^ 



1 Nothing is conformable to the rules of wisdom which, being practiced by 
every one, becomes hurtful and evil. (Barbeyrac's note on Puf., B. Ill, ch. 2, §4, 
quoting Lactantius' Inst., Div. 1, 3, ch. 23.) 
3 



18 INTKODUCTORY. 

g 24. Man has that natural right to his life which can, 
Tinder the same circumstances, he accorded to all other 
men. And where he has a right to the prolongation of 
his life, he has, as an incident thereto, the right to seek 
and use all proper means to support and defend it. 
When, under what circumstances, and upon what princi- 
ple, man may forfeit the right to prolong his life, will 
be fully discussed when the social and governmental 
problems are under consideration. 

§ 25. Liberty is the right to exercise all the faculties 
and powers with which man is endowed that he may pro- 
tect himself and provide for his natural necessities ; and 
also to do and perform whatsoever he pleases, so that he 
does not, in any way, interfere with, or violate the equal 
rights of, others, or endanger the well-being of society. 

g 26. The extent of man's natural liberty as an indi- 
vidual, is to be ascertained by considering his individual 
necessities as a physical, intellectual, social, moral and 
religious being. Whatever these natures may require for 
their proper development and perfection, he is at liberty 
so to provide for, as not to interfere with the like right 
in others. He is at liberty, naturally, to appropriate to 
his own use so much of that which nature has provided, 
without the labor of man, as his necessities require. 
He is at liberty so to bestow his labor, as by the aid of 
natural forces, to convert to his own use, not only that 
which is immediately necessary to supply his own wants, 
and the needs of those dependent upon him, but also to 
lay up in store for their future necessities. In short, his 
personal liberty gives him the right to use all his facul- 
ties and powers, and to possess himself of all the pro- 
ductions thereof, to the extent that the same right can 
be accorded to all others without necessitating conflict. 

g 27. Man's right to the enjoyment of perfect liberty as 
above defined also implies the right to possess himself 
of the means for defending and maintaining that liberty ; 
and also the right to use the same for that purpose. 
For the right to enjoy is of no value unaccompanied 



OF GOVERNMENT. 19 

with the i)rivilege of maintaining and defending that 
right. Therefore, when the right to life and liberty are 
conceded, it follows that every other right essential to 
the maintenance thereof, is also conceded. For the right 
to life would be of no value unless accompanied with 
the right to defend and maintain it ; nor can the right 
to liberty be maintained without the accompanying 
right of self-defense. 

§ 28. Man's right to pursue after or seek happiness, 
implies his right to acquire and enjoy that upon which 
his happiness or well-being depends. He can only 
be happy in the supply of all his needs. There cannot be 
contentment while the mind feels the demand of neces- 
sities it is unable to supply ; and in the absence of 
contentment, there cannot be complete enjoyment. 
Thus, while there is hunger or thirst, and the means are 
not to be had to supplj^ the demand, there can be 
no complete enjoyment. The higher necessities may 
be so abundantl}^ supplied in the presence of such 
physical lack, as almost to overcome the lower dis- 
quiet; but, nevertheless, the demands of hunger and 
thirst will make themselves felt, unless consciousness 
be entirely withdrawn from the physical nature. 

^ 29. But there are, also, social, intellectual, moral and 
religious needs, which must be supplied, to enable man 
to attain his true destiny; and those needs, unless 
properly supplied, have their hungeriugs and thirstings, 
creating an " aching void." Every nature has its needs, 
without the supply of which man cannot obtain happi- 
ness. The gratification he experiences in the appropriate 
supply of the need indicated by hunger or thirst, is but 
one of the many strings vibrating in harmony with 
his perfect destiny, and tending to produce that state 
in him known as happiness. When every need of his 
nature is supplied, so that, physically, intellectually, 
and affection ally, there is no lack, he will have attained 
the state of complete happiness. The affirmation, there- 
fore, of the right of man to seek happiness, implies his 



20 INTRODUCTORY. 

right to seek perfection in every department of his 
being. He has a right to perfect his i^hysical nature, by 
supplying every need thereof; he has a right to perfect 
his intellectual nature, by seeking all knowledge ; he 
has a right to perfect his social and affection al nature, 
by striving to come into true and just relations to man 
and God.^ 

g 30. This natural right to seek happiness, and, hence, 
to employ the means by which alone it can be obtained, 
gives also the right of property, by means of which, in 
many respects, man's needs are to be supplied.^ Man's 



1 Perfect happiness is an incident of a perfected individuality and character, 
and is the proposed end of every human being. Such destiny is the birth- 
right of all, and hence, the desire for happiness is instinctive in man. But 
happiness is to be distinguished from mere gratification of desire. That state 
called desire, looking for gratification independent of the supply of needs, 
arises from a disregard of the demands of the higher nature, whence arise 
spiritual hunger and thirst, creating an "aching void," — uneasiness, discon- 
tent—to silence which, gratification is sought, not by the supply of those 
higher needs, but by the excitation of tiie lower appetites and passions. This 
■undue excitation tends to disease, sufiering and death. This desire for gratifi- 
cation is denominated "lust." 

Real happiness can result only from obedience to law. It is a state of con- 
sciousness in the individual, realizing the complete supply of everything 
essential to his present well-being, without regrets for the past or anxiety for 
the future. It implies a sense of duty performed to one's self, neighbor and 
God. By obedience of every law of his being, man dwells in the smile of Divine 
favor, hearing the voice of God saying, " Well done good and faithful servant, 
enter into the joy of thy Lord." Perfect happiness can result only from perfect 
obedience to every law promotive, in the individual, of his perfect destiny ; 
consequently, when man seeks happiness through the gratification of his 
selfish desires, he must not only fail, but must involve himself in a degree of 
sufiering incident to such disobedience of the requirements of his highest des- 
tiny. It is to be observed that happiness can never be obtained while it is 
made the object of pursuit. It can only follow as a result incident to a state or 
condition in the individual, in harmony with the divine attributes. Hence, 
happiness cannot properly be made the object of pursuit, except as an incident 
of perfected condition or state. 

2 The subject of property, or that to luhich the doctrine of property relates. GoD- 
■WiN, in his treatise on Political Justice, says : " That it relates to all those 
things that conduce, or may be conceived to conduce, to the benefit or pleasure 
of man, and which cannot otherwise be applied to the use of one or more 
persons, than by a permanent or temporary exclusion of the rest of the 
species. Such things in particular are food, clothing, habitation and furniture. 
(Vol. 2, p. 415.) 

Of the nature of property. Pxjffendorf (B. IV, ch. 4, g 1), says that property is 
a moral quality which does not aflfect the things themselves, or as to their 
intrinsic nature, but only produce a moral effect with regard to other persons; 
and that these qualities, as all others of the same kind, derive their birth from 
indisposition, &e. That the natural substance of things suflers no alteration, 
whether property be added to them or taken from them. He defines property 



OF GOVERNMENT. 21 

property rigbte are either in common, or such as belong 
to him exclusively as an individual. He has a right' in 
common to that which nature has provided without the 
labor of man, and which is necessary or convenient for 
his use ; to be so exercised, however, as not to interfere 
with the like right in others. He has a right in common 
to the use of the earth, and the natural i)roducts there- 
of; to the use of the water, and the natural products of 
the same ; to the use of the sunlight, the air, etc., to be so 
used as not to interfere with the same right in others. 
But any appropriation of these natural provisions 
beyond the requirement of his wants, which necessarily 
excludes others, cannot be claimed as a natural right.^ 

g 31. He has also a natural right to the products of 
his own labor. They are, so to speak, his creations, and 
he has a title thereto as the producer or creator of such 
products. This property belongs to the individual, and 
is not held in common, as in case of mere natural pro- 



to be "a right by which the very substance, as it were, of a tiling, so belongs to 
one person, tiiat it doth not in whole belong, after the same manner, to any 
other." (Idem.,l 2; see also Kaufmann's Mackeldey's Civil Law, §260.) He uses 
the terms " dominion " and "property" as synonymous. The right constituting 
a thing property, he says, " strictly speaking, inheres in the person from which 
the things themselves derive some kind of extrinsic denomination." {Idem.) 
But aside from metaphysical disquisitions upon the question, my right of 
absolute property in a thing implies my right of dominion over, and of appro- 
priation of, the thing; and my property therein, when limited to a particular 
use, or when qualified by a particular obligation, is not absolute as to the Whole 
thing, but is deemed a limited or qualified property. But of this hereafter. 

(Beepost, ; see Kaufmann's Mackeldey's Civil Law, § 260.) 

1 Man's right to appropriate those things to his use which God has provided 
for the supply of his needs, is absolute in itself, but is only inchoate in respect to 
the things to be appropriated ; and his absolute property in the thing does not 
commence until the appropriation has taken place. The right to appropriate 
for the supply of needs is absolute, but this right does not attach to a particular 
thing until exercised in respect to such thing. This right, which he holds in 
common with all mankind, to the use of those means provided by the Author 
of his being, without the labor of man, for the supply of his necessities, is, 
therefore, absolute, but it only attaches to the thing when exercised in respect 
thereto. Therefore, the right to appropriate must not be confounded with the 
act of appropriation. Before appropriation, his property in the thing is incho- 
ate and conditional; after appropriation, as above, it is absolute. But this 
absolute right to appropriate these things made essential to the existence of 
man, extends only to the supply of his necessities ; and when, by so extending 
this right, he interferes with the like necessary rights of others, he Is acting 
without authority from nature. 



22 INTRODUCTORY. 

ducts, upon wliicli man Las bestowed no labor.^ He 
has an absolute right to apply to his own use that which 
he has produced without taxing the labor or invading 
the rights of others ; and he has a natural right to keep 
or part with the same upon such terms as he thinks 
proper, subject, however, to such modifications as the 
rights of societj'- impose. 

% 32. He may have property rights in whatever he 
takes from the common stock and renders more valuable 
to himself or to society by the bestowal of his labor upon 
it. Thus, he may take uncultivated land, and by his 
labor subdue it, until its products are more suited to the 
needs of man, or are produced in greater abundance. 
By so* doing, he naturally acquires a property in such 
land, justly measured by the improved character im- 
parted to it by his labor. The same iDrinciple is appli- 
cable to every natural thing made more valuable by the 
labor of man. His exclusive property in anything, 
naturally, is to be measured by what he has bestowed 
upon or imparted to it. Eights of property acquired by 
contract, etc., cannot properly be considered in this place. 



CHAPTER in. 

OF THE OEIGLN^ OF GOVERNMENTS. 

g 33. Civil governments are institutions of society, 
established for the aid and protection of the members 
thereof; and man's right to use his faculties and 
powers to j)rovide for his present and future well-being, 

1 This right to tlie products of one's own labor is absolute, because such pro- 
ducts are the creation of tlie laborer. His title thereto is original, and not 
derived after the tiling has had an existence, as in case of title by appropriation 
or purchase. His title begins with the beginning of that to which he is entitled. 
This proposition presupposes tlie laborer to be the owner of himself, his facul- 
ties and his powers ; and as such owner, to have the riglit to dispose of their 
use for a limited time, or of the products of their use; hence, by contract, he 
can transfer his title to the products of his labor to another, even before they 
have an existence, or, which is the same tiling, he may hire out to another any 
lawful use of himself, his faculties and powers. 



OF GOVERNMENT. 23 

is the basis of the authority with which civil governments 
are necessarily invested. Were all men sufficiently wise, 
powerful and just to understand, respect and perform 
their various duties to themselves and others, the neces- 
sity for human governments would, in a measure, be 
obviated. But, as men are naturally weak, ignorant 
and selfish, and are inclined to prefer self to justice, 
human governments, established upon i^rinciples of 
impartial justice, become a necessity.^ 

g 34. Man is so constituted, that, living alone, he can- 
not perfect himself in his social, moral and religious 
natures. He is constituted for society, and must live 
in it or fail of his destiny. He may live by himself as 
an animal, but he cannot as a social, moral and religious 
being. Hence, society is one of the necessities of his 
existence, giving birth to a class of rights to which 
those of the mere individual are necessarily subordi- 
nated.^ 

1 "All men are endowed with certain unalienable rights, among which are 
life, liberty and the pursuit of happiness; that, for the protection of these 
rights, governments arc instituted among men, deriving their just powers 
from the consent of the governed." (Declaration of Independence.) 

2 Man is so formed by nature that he cannot supply all his own wants, but 
necessarily stands in the need of the intercourse and assistance of his fellow 
creatures, whether for his immediate preservation, or for the sake of perfecting 
his nature, and enjoying such a life as is suitable to a rational being. (See 
Vattel's Law of Nations, Prelim., p 45, ? 10.) 

" The great end of every being endowed with intellect and sentiment, is hap- 
piness. It is by the desire alone of that happiness that we can bind a creature 
possessed of the faculty of thought, and form the ties of that obligation which, 
shall make him submit to any rule. Now, by studying the nature of things, 
and that of men in particular, we may thence deduce the rules which man 
must follow in order to attain his great end — to obtain the most perfect hap- 
piness of Wiiich he is susceptible. We call those rules the natural laws, or the 
laws of nature. They are certain, they are sacred, and obligatory on every 
man possessed of reason, independently of every other consideration than 
that of his nature, and even though we sliould suppose him totally ignorant 
of the existence of a God. But the sublinae consideration of an eternal, neces- 
sary, infinite Being, the Author of the universe, adds the most lively energy to 
the laws of nature, and carries it to the highest degree of perfection. Tiiat 
necessary being necessarily unites in himself all perfection; he is therefore 
superlatively good, and displays his goodness by forming creatures susceptible 
of happiness. It is then his wish that his creatures should be as happy as is 
consistent with their natui-e; consequently it is his will tliat they should, in 
their whole conduct, follow the rules which that same nature lays down for 
them as the most certain road to happiness. Thus the will of the Creator per- 
fectly coincides with the simple indications of nature; and those two sources, 
producing the same law, unite in forming the same obligation. The whole 



S4 IK'TOOPFC^'OKY. 

§1 35, A*5 n\an U tWmtHrtw sooiety. ami i.^ oiulo\\od 
>vith ttuniUii^ and jH>\vtH^ whioli i\M|wiix\ for tboir ouUi- 
vaiiou and povt\vii<>n. tho pw'^^enoo ai\il aul of his follow 
Innnii"^. ho iiuij^t ^^iibmit to all <4iu'h ruU\s ami iViiulations 
as aiv ntHH\<i:>ii>rY t\>r tho t^!!4t«bl^^m^ont aiul uiaintonauco 
of Sivial oxi^tonvv and owlor. Honoo. avii^tviij tho iliH^ 
tvino. that, on ivniinii' into sooiorx . man. in oonj^idovaiion 
of tho Wnotitv^ and ailvanta^iiw^ to bo dorivod thoivfixnn. 
ntHws^vrilv ^s^ninvndoi'^ii \ij> a jH>rtion i\f hi* natm^jvl lil>- 
ortY.* 1\y whioh is moant, tho iudividnal innsr snnvndov 
his olaiin to snoh rights and ivrivilogvs as oanm>t bo 
oxomstHl innxsistontlv with tho oxislomv axnl wolfaiv v^f 
svvioty. Ho must claim fov lumsolf tho oxoiviso of no 
lilvrty whioh cannot Ih^ atHHuthnl to all othoi^. 

^ ,S(K ^lan must Ih^ faithful to lumsolf if ho would 
fultUl tho dt^tmv l\>r which ho is en\>toih E\i>rY ondow- 



iv>\^rts t\^ thi? ttrst $t««t «>»w\ 04- n\wv» Avhivh Is l»a\>|vlnie<s&, 11 was to vx«xtl«<>» 
UUwiv> »ix«t sw<*» w\v\ <h4»? nvi!^ \!i»\v^ vM" nauuv w^^rij* v>¥v\ai«<;Ni ; It l&t>\xmtih«> 

^h<fv^^f^*x^ wv> xuau— \vh^xi>^wT nv^y K^ Ms W<\xs i^\s^H\'th\s t^<* vm'^«4« v\f ?ht> 
u«iws^!»\ (fx^xx xf Ixif txAvi tiim^ ixxisKxttXiXXn^ tv> W ixix aiWxsi — \v»xv> Js xxoi K^xxxd tv> 

V^^e^>- 5iX<f UWS v\f XX^^UXWX T^^y a?^;> XX<:\N\!S;Xry 5v^ «lX<> S^nXtn'Wl hSi>lxt»Xl\SS V\f XXXSXXX' 

kuxvi: »uxv\ xvlxvv!>xvr sJxvhxKI xrv^Kvi tVxxx. xvhvvxv-'r sJxv>xxM oj^^xx^v a«\si>$s<^ Oxexxx, 
xwHxlvi. l\v sxxs-ix v.\MXvlxxo« !*lvxt\<\ vttViATs^ Uhxxss-lf axx <t^xx<>»xx>i- !v> ilx^ hxxxxxsxxx r^iv, 
*ixv^ d>!Ns«!^yxx^ u-* V 5ir<;N»«<ts\ ixs sxxotx, :Xv>xv. vv.x^'' v>f ?Jx<^ rtx-s? isrxxths xvhU-lv th<^ stxxv^- 
»,xf xx\*ix t>fx^<*is tv* xxs, «xxvl xvixxv-Xx tsA\xt\v<sas»ry «.\>xxs<;XixxexxvNe>vxf hisxx)*ixx»\\Xs, 
iJx*!, XXX * susxf vxt U\xx<-^\>- s^vs*ftxsiv\xx ftxxxxx tJxi? xyxs! vxf Ixis SiVVi<f«, hi? o«xxxxxvxi 
sx«aJxx h5s $i!v<!X! ifxx*.^, hAi^v\Sxx«"sss; Jiwxxl th^^ ifxNssvMx Js, tx* vr;*s ixx5exxvl«\l tv^ liYt> ixx 
s\vi^«y xifxtix txxs ^s5lv>x>f v"irv«xnxxy«s». ^Nasxxr^ ht^rss^n". Uxi?x>^Jfi.v>^ h*s «NslAWishi\l 
tix*i s^vx<^5^^ wlHvs*? sw**? «xd te 5lx<e» v\x5xxxx\vxxx Av^xsixlsxs'f vM" an its xxx^^xxxNmts: 
s«v\ th<^ xxx<«*«s v>f sxttixixxhx^ tixixt ifixv) vN>i\stJtxxt«^ tix<? rxxt<?« that <\xoh ixx^tx-^ulxxaX 
is KhxxxvI t\^ v<Svs«;>rY<f U\ txis wfcvxK^ owixv^xxv-ts iSwlx *re» tlx<f xxijxtxxiKxl laxvs vxf ixxxxxxaxv 
svvi<^\" v^*»?^'' «v>ty^ v>xx <Si.\ $v Yati^xl^s T^vr vxf >\ativ>ttSs^ 

X K.VACK'Sxxxsxs; txx tx^ Cvxxxxxxxs^xxtiwirxs vi R» jv I:Si\ Ixas th«> )KmK>x\-ixxs; Ttx* 
»^«!\>ixxt>f r^ts vxf xxx*xx» vVAxsin?<f)^!\\ *s Ji« t>e^> s^nxt^ <>«i>lii>xifwl wtsix v\iSk.>?rxxxx\oxxt 
tv> Sixxv^w ssvn\ t\vvxxx ^vxl. *xxvi vUix |\,nvvirv>f olxvxxsixxs tixtkvs*^ jxxe<Asxxxy\s xv^xK'^tx 
*j^|xxwr tv» Ixittx xxxvxsi d<xsiir*W^\ axv* xxsxxsxlly sxxa\xxx<?^\ xx? Ux 04x<t» s>^xxeT5»l spxv" ,-.- 
tivxsx, sMXvl vlexxvxxxxtxxs«5<!\l tlx<^ xxatxxiniU ntN^yty oJf m»xxktxxvU TMs xx»txxCixX i.>. > 
v\>5xsxs?s. \\rv^\x^!r^\ xxx * is^>wr vvf Sv^ti^xgt !i»s oixxo" tlii«ks St, "witSvv^xt ajx>" jv*:. . ' . . 
v\r vN\xxtrk\5. xxixl!;\ss Vy 5>s<^'«5xxv v\s" xxji»txxr>e>; lvfSix$ * rtjrtxt txxtxi!»Jr>:Hxt ixxxxslv V . ■., 
iixiv^ wxe ^xt~ :^.o ji'-t^s of ^^\l tv> xxx*xx at hi* v-j^ftixtioix. xvJxeix he eixvl«>xirt:xl hhxx v\ uix 
^^^^ ^v'X',';> of x>:w N^ -.r.. Itxxt <>Y*?sry xxxaxx. xvbtxxx Ixe exx!<Mrs into sv.v>it>ty. s*>v« xxj> 
A V*Art v\f >o.s xx,^:ui-:su UN?rty, *s tii* jvrxvwxf sk> \^xx«>.V a x^v.xTV^*se : sxxxvi xw 
vN>ixsiv^«x5iv>xx vxt Tvwivuxs sit"!* a*.\x^sxts^?e* v\f xxxxxutsU *.\xx^xxxxo3\\\ v>M5^v« ixaxx- 
«!?■;;? tv» cv>tt^>!rut tv> 5Jxos«e> i5»"«rs wMv^ tV> (Nxsxxxxxxuxtty txAs tJxoxi5i~tx5 ^xrv^^vr to 
<?«5&Wtea6x. • * * i\\tx5K"*l ox v-ix-tl tH><^rty. »lxej>?S^)r<\ xs xxo »>ther tixaix uatxxral 
Ixtvrty s»> *w w*t«xtxxM by ixxxtxxasx l*ws — swKi txo fixrtixt^r— as is xx<iv*<5s*ry axtd 



iiicttl oi' \t<)(\y .'j.nd of rninH i« alw)lijf,<:ly <'HH(nit,ial to 
fijf; awornj*IiHhfn<;nl, of hi > f riK; (J»;HtJny. Thcmrorf;, Jkj 
Cttfinot Hun'<;nrJ<;r, (;n c/niiiri^ ifjt/> HocJ<;t,y, any <;HH*:nt.ial 
liberty fjr ri^fit. Ah fjin natural rJg^liiH hav<5 lh<;ir baj^in 
in Iji.H natural tiiu;o,HHiVicM, ho far aH Hocicty rno'lifi'^M or 

diMJJCnWJM Willi thc.Hf; UCJ'AtHnh'UiH, to that <;7.U;ii\, h'iH 
natnral ri^htn arf; ifnnlii'icA or <'.\\',i.\\in-A. liut h<5 Hnr- 
rcjjdcr.H no r;HH*;ntial ri^ht; hfj Io,H(;h no \>v\^\h;U^f', of 
injnrif)!^ anothr;r, or of int<;rf((;ring with tho f;/juul rii/;htH 

of OtiHjrH.' 

3 'J7. 1'hr; natural nf',f;^;:',Hiti<;H of tho individual whilo 
iHolat<;d fronj .Hoci«;ty, or flwcilin;^ in a HHVHt^H hUiU;, av*; 
i\\\Xi'.Tt'.u\. frofn thorn oi' orio cnjoyin/^ the sulvtiiitifi^fiH of 
a hi;<h civilization. And tho natnral tU'/'J'.hhWwm bcin;^ 
dirtV'.rent, the natural rif^hts incident to those u<;('/'»,h)Iu'.h, 
an; like.wi.se differrjnt. The, man advanein;^ from a 
Hava^e to a caxWv/A'A condition dof.H not thweby «ur- 
rendr;r the natnral ri^htn incident to bin native Htaf;^;. 
Haviri;^ pnt off his primitive condition, be has alH<^> put 
off with it, the ineidentH thereof, or, in other 1an;;(nage, 
the ('/>nrlitiori cj'/fiHiufr^ the incidentM thereof c<ja«<? with it/ 

3 '>H. Society beinj( ne/;es.sary to tbe individual to 
enable bim to fulfill hi.s true destiny, be bjis, iiH an 
incident, all tbriri/^hts ne^Mjssarily involved in tbe (tni'dh- 
lishment and rcf^ulation of tbe s^iciety demanded, ft 
hcAU'^ a natural ner;/5.s.sity, it rniist be cstablinbed upon 
Huch foundations as will secure its <;^;nti nuance, and 

' " M'/raJ or natrjral llfxrrfy Im i.h<! rl!<>it wyiU-M Tisttarc- nivm U> t%,\\ ntnn)i\n/l <it 
6)»pfMini( 'if thTlr iif^rHfirin ari'l prop*^r1.y iifUrr tbft maum^r Ih'ry Jm'Jk'; ttt'/Htcj/tt- 
wtrtnut Ui thtvir happirK^m, on fy/ndiOwi </f Wi«ir tuMnn within thft Utnitst utihn 
Uw of uninrt-., an'l l,N;if, t,h*;y do ^ofc any way at>twe It to the jfr*r)aau» ot anjr 
otb<!f ni«;n." <y.ar\si.rnsuin\, ch, ?, ? Di.) 

« '"ni*! iWtni/M f/vMIU/et fo/^i/wli, fft Xhf, liberty «'/f doinff «nr«rrythJn« wtil/;h th« 
p»iW»J/>r)<t of rnan rnay urj{<! h)rn t/;> attempt, f/r hlx «rtr«rn«(th #maW« hlni t/* tittttt^, 
l« navHK'; tir'^:U.y ; It U th<! \\\,nny '/f the tl«<?r, an4 mH tti« liberty '/f man." 
(HhHrnw)'>'\'n wiU; U> 1 IJIa, lUmi., p, 12^,; 

M/».n c.Ttvu.u-A \u th«; immtc of h)n S1o,kt^r, an'l, Vrtr'tn^t Mn c/nxtltotl/zn, rna/le 
tbe iiahj«^;t of rnoml ifoyemment, l«, by natore, invt^U-A with no nUrn.y 
<fT t^iiVfWf-A wU.tt nt> tiffitU \nfjmn\%U'.nt with the reqwlrerrientf* '/f that. ((ov«rrn- 
rn'int t^j whleh h<; Ji »i«bj»!et. It wmhi be a perv«rr»i'/Ti '/f rfjav/n t/zsay that 
man ha/1 the liMrrty or rijjJit u^ eomrnlt a wrcmg bfecatwe the Al/fll«l«ty Jiad 
intrw.Uul him with power t/j do «o. 

4 



26 INTRODUCTOEY. 

enable it to accomplisli the purposes for wliicli it is 
coDstituted. And man coming into, and becoming 
a member of, civilized or enlightened society, and 
participating in its benefits as a refining and civilizing 
institution, ceases to be a savage ; consequently the 
rights incident to the savage state cease to exist ; not 
so much by a surrender of the right or liberty, as by a 
destruction of that condition out of which it arose. 

g 39. That society which is adapted to the natural 
necessities of the individual, must establish its founda- 
tions in natural justice. It must permit no necessary 
liberty or right of the individual to be abridged. It 
must not hinder him in the pursuit of a perfect destiny, 
and, hence, must not embarrass him in seeking the 
supply of his essential needs. Tliose necessities of the 
individual which call for the existence of society, require 
it for purposes of aid and protection. Tlierefore, society 
must be so constituted and used as not to interfere with 
the essential rights or liberties of the individual members 
thereof. 

^ 40. Civil liberty consists in the right to seek after, 
and employ, every means essential to the perfection of 
the individual in evevj department of his being. Civil 
governments are instituted for the purpose of protecting 
man in the exercise of such liberty, and also for aiding 
him when such aid can be given without encroaching 
upon the equal liberty of others. Man is entitled to no 
greater liberty than that which leaves him free to seek 
the end for which he was created ; and no government 
can be authorized to restrain him in the exercise of such 
liberty. A true civil government, therefore, is one so 
instituted and administered as leaves every subject 
thereof free to seek the supply of every need, and 
protects him in such endeavor.^ 

1 Civil liberty is " that of a member of society, and is no otlier tlian natural 
liberty so far restrained by liuman laws — and no farther — as is necessary and 
expedient for the general advantage of the public." (1 Bla. Com., 125.) 

" Civil liberty is tlie not being restrained by any law but what conduces in a 
greater degree to the public welfare." (Paley on Civil Liberty, B. 6, c. 5.) • 



OF GOVERNMENT. 27 

§ 41. Civil liberty, then, consists in living under the 
protection of a civil government, -where the subject is 
left free to exercise fully all his faculties and powers in 
seeking the perfection of his being, or the attainment 
of a XJerfect destiny ; and where he is fully protected in 
the exercise and enjoyment of such rights. A true 
government cannot restrain its subjects, as such, in the 
exercise of any individual right.^ For government is 
not authorized to make unnecessary requirements of its 
subjects ; and those which are essential to the existence 
and well-being of society, the subject has no individual 
right to retain or claim.^ 

g 42. Society can have no rights not essentially in 
harmony with the rights of its individual members. 
For God, having ordained society as necessary for the 
perfection of the individual, has jjlaced social and 
individual rights upon the same basis. The necessities 
of the individual give birth to those of the social. 
Hence, there must be agreement between individual 

1 The terms "civil" liberty and "civil" rights, and "political" liberty and 
" political " rights, are usually treated as synonymous. In this work they will 
be carefully distiuguislied. By "civil" liberty and "civil" rights will be 
understood tlie liberty and rights appurtenant to the individual as a member 
of society and subject of ^ivil government, whetlier he be an infant or an 
adult, a male or a female, a native or an alien. By "political" liberty and 
" political " rights are meant those riglits and privileges conferred upon the 
subject by tlie government. That is, " civil " rights inhere in the individual ; 
"political" rights are conferred upon him. "Civil" rights are a natural 
endowment; "political" rights are a governmental one. Government must 
concede "civil" rights and "civil" liberty to all; it confers political rights 
according to its discretion. This principle has its foundation in the law of 
necessity. The government must determine upon whom, and upon what 
conditions, it is safe to confer political power, having in view the existence 
and higliest good of society ; but it must respect the " civil" liberty and " civil " 
rights of all, or defeat the very end of its existence. 

2 " Every wanton and causeless restraint of the will of the subject, whether 
practiced by a monarch, a nobility, or a popular assembly, is a degree of 
tyranny; nay, even laws themselves, whether made with or without our con- 
sent, if they regulate and constrain our conduct in matters of indifference, 
without any good end In view, are regulations destructive of liberty." (1 Bla. 
Com., 126.) 

The right to regiilate or constrain the conduct of the individual in one thing 
indifferent, implies the same right in all things, which would necessarily be 
destructive of all liberty and right in tlae subject. The exercise of such power 
is tlie characteristic of despotism; and it does not properly belong to a 
legitimate civil government, which derives all its right to govern upon the 
theory of a public authority created on account of a public necessity. 



28 INTRODTJCTORY. 

and social necessities — and, therefore, between indi- 
vidual and social rights — and civil government performs 
its office most perfectly when it so administers as not to 
abridge the rights of any of its subjects. 

§ 43. Civil government is a necessity of society, and, 
hence, the necessity of every individual member thereof. 
Therefore, everything essential for the estabhshmeut and 
maintenance of such government becomes a like 
necessity. Whatever right or power is demonstrated to 
be indispensable to its existence and maintenance, 
society can properly confer upon it. Therefore, society 
has sovereign authority to invest civil government with 
every right and power essential to its existence and 
just administration ; and the highest government thus 
constituted must have sovereign authority, absolute 
within such limits, and for such purposes. 

% 44. Every civil society must necessarily establish a 
public authority, under which its common affairs are to 
be regulated, and the civil conduct of each member, in 
respect to the public welfare, is to be prescribed. This 
authority belongs essentially to the whole body of 
the society, until it is vested in those intrusted with the 
administration of its government. ♦ But as soon as 
society institutes its government, and determines the 
mode of its administration, the public authority is vested 
therein, and can only be exercised thereby.^ 

§ 45. The fundamental regulations which determine 
the manner in which the public authority is to be 
executed, form the constitution of the government. And 
society, having instituted its government, determined 
the fundamental regulations by which it is to be admin- 
istered, and invested it with the public authority, is 
bound by it, and must itself submit to that authority. 

1 All the members of a state cannot be called together to be consulted or to 
vote upon the enactment of its laws; or upon the adjudication or execution 
of them, and if they could be consulted, upon all questions of this. character, 
they would not be able to agree unanimously. Hence, there must be an estab- 
lished pu^blic authority by which the laws of society are to be enacted, adjudged 
and executed, without which society could not exist. 



OF GOVERNMENT. 29 

It can, then, exercise its autliority, civilly, in no other 
way, for, politically considered, the government repre- 
sents, or stands for the society/ 

§ 46. Between the body of society, and the govern- 
ment instituted by it, there is a manifest distinction. 
Society institutes its government and invests it with 
the public authority ; and the government thus insti- 
tuted executes that authority in the manner prescribed. 
Hence, while the body of society is the source of the 
authority, it is not the government itself, and it can 
execute the public authority only in the manner pre- 
scribed.^ 



CHAPTER lY. 

Of the Nature of Governments, and their Natural Rights. 
g 47. Whatever may be the form of the government 
established by society, it is instituted to be intrusted 
with the execution of the public authority. By the act 
of association each citizen subjects himself to the 
authority of the entire body in everything relating to 
the common welfare.^ The public authority emanates 
from the entire body of society, which, to be executed, 
must be vested somewhere ; and wherever that author- 
ity is vested, there is to be found the government of 
that society. Therefore, while the authority of all over 
each member, belongs essentially to the body politic or 

1 For the necessity requiring society to establish a public authority, also 
requires it to submit to the execution of that authority in the manner and 
form prescribed. Where the constitution prescribes the manner in which the 
national authority is to be executed, or its fundamental laws are to be modified 
or repealed ; or, in which the national will is to be ascertained, the nation is 
thereby estopped from adopting any other method, except by overturning the 
established authority, which is equivalent to revolution. 

2 "It is evident that, by the very act of civil or political association, each 
citizen subjects himself to the authority of the entire body in everything that 
relates to the common welfare. The authority of all over each member, there- 
fore, essentially belongs to the body politic or state ; but the exercise of that 
authority may be placed in different hands, according as the society may have 
ordained. (Vattel, B. 1, ch. 1, g 2.) 

3 Vatt. L. of N., B. 1, ch. 11, § 2. 



30 ' INTRODUCTORY. 

state, the exercise of that authority may be placed in 
different hands, according as society ordains.^ 

§ 48. Society determines the form of its government, 
that is, the body to which the execution of the public 
authority is committed, which may be democratic, aris- 
tocratic or monarchical : that is, the public authority 
may be vested in a number of men elected by the peo- 
ple ; or in a particular or select class of the people ; or 
in a single individual ; or the government may be a 
combination or a modification of these three kinds. 
But whatever its form or constitution, it is created for 
the purpose of executing the public authority ; and 
derives its authority to act in the premises, from the 
body of society.^ 

g 49. From the nature and constitution of men, and 
from their situation upon the earth, there must neces- 
sarily be many independent societies or nations. It is 
manifestly impossible for the whole race to dwell 
together in a single society, or to become subjects of a 
single civil government. 'No one government could 
adapt its administration to all ; nor could it execute the 
public authority upon all. Hence, from necessity, the 
race must be gathered into many independent societies 
or nations ; and governments must be devised adapted 
to the conditions and necessities of these various socie- 
ties ; and hence, being separate from, and independent 
of, each other, each must be sovereign within its own 
limits. 

S 50. The largest societies of men civilly associated 
together constitute nations : consequently, the highest 
public authority to be executed by any civil government 
is the authority of the nation. As nations are consti- 

1 Idem. 

2 " In Europe, sovereignty is of feudal origin, and imports no more than the 
state of tlie sovereign. It comprises his riglits, duties, exemptions, prerogatives 
and powers. But witli us, all power is with the people. They alone are sov- 
ereign ; and they erect what government they please. None of these govern- 
ments are sovereign in the European sense of the word, all being restrained 
by written constitutions." (See Webster's reply to CALHOirisr, in the Senate 
of the U. S., Feb. 16, 1833.) 



OF GOVERNMENT. 31 

tuted of societies composed of the largest number of 
individuals civilly associated together, and as the public 
authority consists of the authority of all over each, it 
follows that the public authority of the nation is sov- 
ereign within its limits.^ 

g 51. Sovereignty is the supreme authority and power 
by which a state is governed.'^ It implies the right of 
commanding in the last resort.^ As an attribute of civil 
government, it is the right of commanding civil society 
in all matters pertaining to the public welfare, in the 
last resort; which right the members of such society 
have conferred on one and the same person — which 
may be an individual or a body corporate. — with a view 
to preserve order and security in the commonwealth; 

1 It does not follow that all national societies are equally numerous, wealthy 
or powerful. One nation may be much inferior to another in each of these 
particulars— may, in fact, be obliged to seek alliance with another and more 
powerful nation, to protect itself against the encroachments of other powers. 
But this does not abridge its sovereignty or lessen its authority to command 
within its own limits, or its right to claim its position in the family of nations. 
Nations, as individuals, may differ in wisdom, wealth and power; but, like 
individuals, they are also equal in their rights as sovereign states, which do 
not depend upon considerations of that character. Says Vattel (Prelim., J 15), 
" Nations composed of men, and considered as so many free persons living 
together in the state of nature, are naturally equal, and inherit from nature 
the same obligations and rights. Power or weakness does not, in this respect, 
produce any difference. A dwarf is as much a man as a giant ; a small republic 
is no less a sovereign state than the most powerful kingdom." 

From the very design that induces a number of men to form a society 
which has its common interests, and which is to act in concert, it is necessary 
that there should be established a public authority to order and direct what is 
to be done by each in relation to the end of the association. This political 
authority is the sovereignty : and he or they who are invested with it are the 
sovereign. (Vattel, B. 1, ch, 1, § 1.) 

2 " Sovereignty is that public authority which has no superior, and which 
commands in an independent civil society, ordering and directing what each 
must do to acquire its ends. It is the union of all the powers; it is the power 
to do any and everything in a state, without being accountable to any one." 
(Bouv. Inst., vol. 1, p. 8. See, also, Lawrence Wheat., p. 35 ; also note 1 to ? 49, 
ante.) 

3 This right of commanding in the last resort must not be the subject of 
appeal to other authority. It must include the right to command each and 
every member of the nation, or all residing within its local jurisdiction, in all 
matters in any way pertaining to the public welfare, without authority left in 
any one or anywhere, to resist. For if its authority may be resisted, then 
there must be superior authority within the same jurisdiction. This is impos- 
sible. For the nation being the highest form of civil society, its government 
is the highest in authority, and is, therefore, supreme. (See, also, Burlamaqui, 
P. L., ch. 5, § 3; Vattel, B. 1, ch. 1, 2 4.) 



32 INTRODUCTORY. 

to promote the general welfare, and to secure tlie bless- 
ings of liberty.^ 

§ 52. To entitle a society to rank as a nation, and to 
figure in the family of nations, it must become actually 
sovereign and independent within the limits of its 
assumed jurisdiction. It must have the power to com- 
mand therein in the last resort. It must have instituted 
a government and invested it with sovereign authority ; 
and before it can claim recognition, it must give prima 
facie evidence of its ability to execute the public 
authority against all resistance within its limits. 

§ 53. Before a society is morally entitled to attempt 
establishing for itself an independent national existence, 
there must exist a necessity for it so imperative that the 
failure to establish it would be a public misfortune. 
That is, the social necessity for it must be such that it 
cannot be otherwise supplied. 

S 54. That social necessity which calls for the estab- 
lishment of a nation as a sovereign and independent 



iSee Preamble to Const. U. S., also Burlamaqui P. of Pol. Law, cliap. 5, §§ 1, 2, 
3, 4. 

"This supreme authority may be exercised either internally or extern- 
ally. Internal sovereignty is that which is inherent in the people of any 
state, or vested in its rulers by its municipal constitution or fundamental 
law. This is the object of what has been called ' internal public law,' but 
which may more properly be termed ' constitutional law.' External sov- 
ereignty consists in the independence of one political society in respect to all 
other political societies. It is by the exercise of this branch of sovereignty 
that the international relations of one political society are maintained, in 
peace or war, with all other political societies. The law by which it is regula- 
ted has, therefore, been called ' external public law,' but more properly 
termed 'international law,' (Lawrence Wheat. Int'l Law, pp. 35 and 36.) 

The rules applicable to the establishment of nations are quite similar to 
those by which the natural rights of the individual are determined. No nation 
should arrogate to itself rights and privileges in its institution, establishment 
and administration which cannot be awarded to all other nations. For, as all 
are equally sovereign and independent, and are to co-exist as such, they must 
mutually recognize this sovereignty as belonging to each, and must consider 
the necessary incidents of sovereignty as being the same in each and all. The 
logic is this : If God has made the existence of nations upon the earth a neces- 
sity, then must the nations be entitled to territorial locations upon the earth, 
and to such locations as are suited to their existence and security ; and he has 
clothed each nation with those natural rights which are essential to establish, 
maintain and perfect its existence, and to accomplish the purposes for which 
it has been established ; and these rights, naturally incident to the sovereign 
and independent condition of the several nations, must harmonize ; so that, 
If observed, the highest interest of each nation could be secured. 



OF GOVERNMENT. 33 

state, naturally limits it to the occupation of sucb ter- 
ritory as is essential to enable it to fulfill the purpose 
for which it was established, and to maintain and per- 
petuate its existence. It has a natural right to so much 
territory as is not occupied by, or is not essential to, the 
existence and safety of an existing- nation. For, if 
the establishment of a ijarticular nation as a sovereign 
and independent state is a necessity of society, then has 
society a natural right to such boundaries as are essen- 
tial to its existence and security. 

g 55. The necessity requiring the establishment of 
independent societies or nations, has its limits in those 
principles essential to the existence, security and pre- 
servation of the nation when established. Whatever is 
essential to national existence and security, must attend 
the right to establish a nation. Hence, in asserting the 
right to establish a new nation, the right to everything 
essential to the existence and security of that nation, 
must also be considered. If such essential rights can- 
not be asserted and maintained without violating other 
essential principles and rights, the moral right to estab- 
lish such nation is not perfect. 

§ 56. Territorial extent, natural limits, homogeneous- 
ness of people, indicating a geograi)hical, moral and 
commercial unity, suited to form one nation, are among 
the essentials to a healthy, prosperous and secure politi- 
cal existence as a nation. ^ Neither requisite may be 
perfect, naturally ; but each should be so nearly so, that 
the spirit and genius of the people can readily supply 
that which is lacking. 

g 57. That social necessity which requires the estab- 
lishment of a nation, demands that it shall be so 
established and located as to secure permanence and 
safety. This demand is as imperative as the necessity 
calling for its existence. Hence, a nation is under the 
highest obligations to itself to provide, in every way 

iSee "State Rights," a Photograph from the ruins of ancient Greece," by 
Prof. Tayler Lewis, LL. D., pp. 5, 6, 7, 8, &c. 
5 



84 - mTRODUCTORY. 

possible, for its own perpetuity and security. It must 
seek such natural boundaries as indicate separation and 
are most easily defended. It must secure to itself 
means of external communication with the civil, social 
and commercial world ; and, hence, should hold in its 
own hands the key by which such communication is 
secured.^ 

1 Some of tlieso considerations are alluded to by President Lincoln in his 
Annual Message to Congress, December 1, 1862. 

" Physically speaking we cannot separate. We cannot remove our respective 
sections from each other, nor build an impassable wall between them." * * « 
" There is no line, straight or crooked, suitable for a national boundary upon 
which to divide. Trace through from east to west upon the line between tlae 
free and slave country, and we shall find a little more than one-third of its 
length are rivers easy to be crossed, and populated, or soon to be populated, 
thickly upon both sides; while nearly all its remaining length are merely 
surveyor's lines over which people may walk back and forth without any 
consciousness of their presence. No part of this line can be made more 
difficult to pass by writing it down on paper or parchment as a national 
boundary." * * * 

"There is another difficulty. The great interior region bounded east by the 
AUeghanies, north by the British dominions, west by the Rocky Mountains, 
and south by the line along which the culture of corn and cotton meets, and 
which includes part of Virginia, part of Tennessee, all of Kentuck5', Ohio, 
Indiana, Michigan, Wisconsin, Illinois, Missouri, Kansas, Iowa, Minnesota, 
and the Territories of Dakota, Nebraska and part of Colorado, already has 
about ten millions of people, and will have fifty millions within fifty years, 
if not prevented by any political folly or mistake. It contains more than one- 
third of the country owned by the United States. Certainly more than one 
million of square miles. Once half as populous as Massachusetts already is, 
it would have more than seventy- five millions of people. A glance at the map 
shows, that territorially speaking, it is the great body of the Republic. The 
other parts are but marginal borders to it, the magnificent region sloping west 
from the Rocky Mountains to the Pacific being the deepest, and also the 
richest in undeveloped resources. In the production of provisions, grains and 
grasses, and all which proceed from them, this great interior region is naturally 
one of the most important of the world. Ascertain from the statistics the 
small proportion of the region which has as yet been brought into cultivation, 
and also the large and rapidly increasing amount of its products, and we 
shall be overwhelmed with the magnitude of the prospect presented. And 
yet this region has no seacoast, touches no ocean anywhere. As part of one 
nation, its people now find, and may forever find, their way to Europe by 
New York ; to South America and Africa by New Orleans, and to Asia by San 
Francisco. But separate our common country into two nations, as designed 
by the present rebellion, and every man of the great interior region is thereby 
cut off from some one or more of these outlets, not perhaps by a physical 
barrier, but by embarrassing and onerous trade regulations." 

" And this is true wherever a dividing or boundary line may be fixed. Placo 
it between the now free and slave country, or place it south of Kentucky or 
north of Ohio, and still the truth remains that none south of it can trade to 
any port or place north of it, except upon terms dictated by a government 
foreign to them. Those outlets east, west and south, are indispensable to the 
well-being of the people inhabiting and to inhabit this vast interior region. 
Which of the three may be the best is no proper question. All are better than 
either, and all of right belong to that people and to their successors forever. 



OF GOVERNMENT. 35 

g 58. The duty of self-protection and self-preservation 
"wbicli a nation owes to itself, requires that it should 
prevent any other power taking a position in reference 
to itself, by which its security or prosperity could be 
made dependent upon a foreign will. Hence, it has a 
right to demand that another nation shall not, unneces- 
sarily, take such a position or occupy such territory, as 
will give it power over the existence, security or pros- 
perity of its own people.^ 

S 59. A State^ consists of an association of individuals 
united together under an organized government,^ insti- 
tuted to aid and j)rotect the members thereof in the 
exercise of their civil liberty and the enjoyment of their 
just rights ; and for that purpose, intrusted with the 
execution of the public authority.* In its organic exist- 
True to themselves, they -will not ask ivhere a line of separation shall be, but 
■will vow rather, that there shall be no such line. Nor are the marginal regions 
less interested in those communications to and through them to the great 
outside world. They too, and each of them, must have access to this Egypt 
of the west without paying toll at the ci-ossing of any national boundary." 

" Our national strife springs not from our permanent part ; not from the land 
we inhabit; not from our national homestead. There is no possible severing of 
this, but would multiply, and not mitigate, evils among as. In all its adapta- 
tions and aptitudes, it demands union and abhors separa(tion. In fact it would 
ere long force re-union, however much of blood and treasure the separation 
might have cost." 

1 See the letter of President Jefferson to the American Minister in France — 
Mr. Livingston— dated April 18, 1802, touching the cession of Louisiana and the 
Floridas by Spain to France. (Life of Jefferson by Randall, vol. 3, p. 6.) The 
position taken by the President is, substantially, that the United States can- 
not permit P'rance to possess the mouth of the Mississippi, &c. ; the right of 
self-preservation prohibited it. See, also, his message to Congress on that sub- 
ject, ilecessity is above conventional law. 

2 The term state and nation are here used synonymously. 

3 "The government of a state is that organization in which the political 
power resides. It is the political being created by the Constitution or funda- 
mental law. A government is a body politic ; it has a will of its own ; and it 
possesses powers and faculties to execute its own purposes." (Webster's 
speech in U. S. Senate, February 16, 1833.) 

<BuRLAMAQUi says : "The state may be defined a society by which a multi- 
tude of people unite togetlier under an organized government In order to And, 
through its protection and care, the happiness to which they naturally aspire." 
(Polit. Law, ch. 4, ? 9.) 

Vattel says : " A nation or state is a body politic or society of men, united 
together for the purpose of promoting their mutual safety and advantage, by 
their combined strength." (Law of Nations, B. 1, ch. 1, g 1.) 

Cicero gives substantially the same definition. (De Rep., 1, § 25.) 

TuLLY says: "Multitudo juris consensu, et utilitatis communione sociata." 



86 INTEODUCTORY. 

ence, it is a body corporate, having an individual will, 
purpose and power, by which only it can be known in 
its volitions, purposes and actions.^ 

g 60. Nations, as sovereign states, are bodies corpo- 
rate, free and independent, living together as equal 
members of the universal national family, having no 
superior except nature and God, under whom they exist 
and by whose laws they must be governed to perpetuate 
that existence. Hence, they are to be considered as so 
many persons living together in a state of nature, free 
and unrestrained, except so far as governed by the end 
for which they were created, under the laws of nature 
thereto applicable. 

iTwo things are essential to tlie formation of a sovereign state. (1.) It is 
necessary to unite permanently the wills of all the members of the society in 
such a manner, that from that time forward they should never desire but one 
and the same thing, in whatever relates to the end and purpose of society. (2.) 
To establish a supreme authority, supported by the strength of the whole body, 
by which to enforce obedience to all rules and regulations of the state estab- 
lished by the public authority. This union of the will and power of society 
constitutes the body corporate and politic thereof, and without which civil 
society could not exist. This union of wills in the body corporate is by the 
expressed or implied agreement of every one in society, by which he under- 
takes to submit his private judgment and will in all matters pertaining to the 
public interest, to the determination of those intrusted with the execution 
of the public authority; and to yield himself to obey, and to give his power to 
the government to compel others to obey, whatever in that respect the public 
authority constitutionally requires. (See BurlamacLui's Prin. of Polit. Law, 
ch. 4, §2 4, et seq.) 

This union of strength, which produces the sovereign power of the state, 
is not formed by each man communicating his physical strength to the corpo- 
rate body so as to remain utterly weak and impotent himself; but by an 
engagement by which all in general and each in particular oblige themselves 
to use their strength for the public only in the manner prescribed by tlie pub- 
lic authority. By this union each member of society is under the protection 
of the power of the whole society united. This multiplication of strength in 
the body politic resembles that of each member of the human body. Take 
them asunder and they are powerless; unite them and their strength 
increases, until together they form a robust and powerful organism, or human 
body. (See also, Burlamaqui, supra.) 

Nations being composed of men naturally free and independent and who, 
before the establishment of civil societies, lived together in a state of nature, 
are to bs considered as so many free persons, living together in a state of 
nature. (Vattel, B. 1, ch. 1, § 4.) All men are subject to the laws of nature, and 
as their union in civil society cannot have exempted them from their obliga- 
tion to observe those laws, since by that union they do not cease to be men, 
the entire nation — whose common will is but the result of the united wills of 
the citizens — remains subject to the laws of nature and is bound to respect 
them in all her proceedings ; and since rights have their basis in needs, the 
nation possesses also the same rights which nature has conferred upon men, 
in order to enable them to perform their duties. (See Vattel, B. 1, ch. 1, § 5.) 



OF GOVERNMENT. 37 

^ CI. Since nations, as civil institutions, are an out- 
birth from the social necessities of men, there are certain 
laws having their basis in such necessities, which are 
fundamental to the existence and security of nations. 
These laws are the laws of nature as applicable to them. 
They are necessarily immutable, being founded on the 
nature of man and his relation to his fellows as mem- 
bers of society. Therefore, to constitute, maintain and 
perpetuate such society as an organized, orderly 
and healthy body, these laws must be observed and 
enforced. They constitute the necessary laws of 
nations.^ 

g 62. The universal society of the human race being 
an institution of nature, that is, a necessary conse- 
quence of the nature of man, all men in every station 
are bound to cultivate it and discharge its duties. They 
cannot liberate themselves from the obligation by any 
convention or private association. When, therefore, 
they unite in civil society for the purpose of forming a 
separate state or nation, they still remain bound to the 
performance of their duties toward the rest of mankind. 
Hence civil societies, thus constituted of persons owing 
these moral duties, become moral persons, possessed of 
an understanding, a volition and strength, and are 
under the like obligations to other nations, as men are 
to other men.^ 

^ C3. The object of the establishment of civil societies 
among men being to enable each member to attain that 

1 Vattel, Prelim. ? 7. 

"There are things just in themselves and allowable by the necessary law of 
nations, on which states may mutually agree with each other, and which they 
may consecrate and enforce by their manners and customs. There are others 
of an indifferent nature, respecting whicli it rests in the option of nations to 
malie in tlieir treaties whatever agreements they please, or to introduce what- 
ever customs or practices they think proper. But every treaty, every custom 
which contravenes the injunctions and prohibitions of the necessary law of 
nations, is vinlawful. * * * Nations being free and independent, tliougli the 
conduct of one of them be Illegal and condemnable by the laws of the con- 
Bcience, the others are bound to acquiesce in it where it does not infringe upon 
their perfect rights. The liberty of that nation could not remain entire if 
others were to arrogate to themselves the right of inspecting and regulating 
her actions." (Vattel, Gen. Prin., § 9.) 

2 See Vattel, Prelim., g 11. 



38 ■ INTRODUCTORY. 

perfection of individuality and character for wliicli lie 
was created; and the government being bound to do 
everything in its power to accomplish the object for 
which it was instituted, it follows as a fundamental law 
of nations, that, in their conduct in respect to each 
other, each is bound to do everything in its i)ower, con- 
sistent with its duties to itself and its subjects, to 
contribute to the perfection and consequent happiness 
of other nations.^ 

g 64. As a consequence of the freedom and independ- 
ence of nations, each is entitled to the enjoyment of 
that i)erfect liberty she inherited from nature ; and, 
hence, it is, also, a fundamental law of national exist- 
ence, that, in respect to all matters depending u[)on 
judgment, or conscience, as to what she may or may 
not do, it must rest solely with herself to determine. 
This is a fundamental law, because a nation cannot 
exist, and perform its duties in executing the public 
authority, without this absolute right to examine and 
determine such questions.^ 

1 The duties a nation owes to itself are, unquestionably, paramount to those 
it owes to other nations. When, therefore, she cannot contribute to the wel- 
fare of another nation without doing an essential injury to herself, her obliga- 
tion, in that respect, ceases, because she is then under a disabilitj'- to perform 
the office in question. (Vattel, Prelim., g 14.) 

The golden rule is as applicable to nations as to individuals: "Whatsoever 
ye would that men should do unto you, do ye even so to them ;" and as it is 
according to the nature of men, that kindness and good office should, in turn, 
beget kindness and good office, and that unkindness should beget unkindness, 
God has made it for the interests of individuals and nations to do each other 
all the good possible. Says Xenopiion : " If we see a man who is uniformly 
eager to pursue his own private advantage without regard to the rules of honor 
or the duties of friendship, why should we, in any emergency, think of sparing 
him?" 

2 Whatever is fundamentally essential to the existence and security of 
nations, is conferred by natural law, which may be denominated a funda- 
mental laxu, or a necessary law of nations. 

The rights of nations, incident to their sovereignty and equality, are not 
unlike those natural rights incident to individuals, as equals, in their individ- 
ual sovereignty. In matters of duty and conscience, or of judicial determina- 
tion, individuals have a right to examine and determine all questions for 
tliemselves, being answerable only for an abuse of such liberty. We cannot 
constrain a person to perform a particular act or service for us except when 
there is a legal obligation by Avhich he is bound to perform for us the particular 
thing or service, independent of the determination of his conscience or judg- 
ment. When one has a right to do or not to do a particular thing, or has a 
discretionary duty to perform, his obligation is said to be imperfect, because 



OF GOVERNMENT. " 39 

§ G5. Tliat necessity which requires the institution of 
nations, and the establishment of civil governments, 
requires, also, that they shall be maintained and pre- 
served. Therefore, all sovereign states have a perfect 
right to those things which, by the laws of nature, are 
necessary for their security and preservation.^ 

§ CG. All nations being equally sovereign and inde- 
pendent in their intercourse with each other, each is 
bound to respect the other as possessing the same pre- 
rogatives, as entitled to the same rights, and bound to 
the same duties as itself. Hence, the golden rule appli- 
cable to individuals, requiring them to do unto others 
as they would that others should do unto them, is like- 
wise applicable unto nations requiring the same conduct 
between them. 

^ 67. Nations being sovereign and indei)endent, have 
perfect authority to enter into treaty stipulations with 
each other, by which they can bind themselves to do or 

there is no authority to compel liis determination or action. But wliere he 
may be compelled to perform the act, whether he will or no, his obligation is 
said to be perfect. 

Says Vattel : " The perfect right is that which is accompanied by the right 
of compelling those who refuse, to fulfill the corresponding obligation. The 
imperfect right is unaccompanied by that right of compulsion — it gives him only 
the right to ask." (Prelim., g 17.) For where one is subject to compulsion in 
respect to his action, he is no longer free in that respect. 

Also, as a necessary consequence of the civil equality of nations, whatever, 
in principle, is lawful for one nation, is lawful for another ; and whatever, in 
principle, is unjustiflable in one, is also, in the other. Each, alike, is mistress 
of her own actions so long as they do not aflFect the perfect rights of other 
nations. (See Vattel, Prelim. 1 19.) 

1 It, therefore, follows that all nations have a right to resort to forcible means 
for the purpose of repressing any particular nation, which openly violates the 
J.aws of society, and thereby endanger the security and stability of nations. 

"The laws of natural society are of such importance to the safety of states, 
that, if the custom of trampling them under foot once prevailed, no nation 
could flatter herself with the hope of preserving her national existence, and 
enjoying domestic tranquillity, &c. All nations have, therefore, the riglit to 
resort to forcible means for the purpose of repressing any one particular nation 
who openly violates the laws of society which nature has established between 
them, or who directly attacks the welfare and safety of that society." (Vattel, 
Prelim., g 22.) 

But, as nations are free and independent, they have no authority to interfere 
with the conduct of one another, where perfect rights are not infringed. Thus, 
though the conduct of those intrusted with the administration of public 
authority be against good conscience, in respect to the subjects of that author- 
ity, other nations cannot interfere without infringing the fundamental 
principle of national sovereignty and equality. 



40 INTRODUCTORY. 

not to do, any particular act or thing, within the per- 
mission of natural law, in harmony with the purposes 
of their institution, and not prohibited by their funda- 
mental law. 



A TREATISE ON GOVERNMENT. 



CHAPTEE I. 

OF THE UNITED STATES AS A NATION. 

^ 68. When the people of the American colonies pro- 
mulgated their declaration of independence, it was 
necessary for them to unite, that they might provide 
for their common defense, promote their general wel- 
fare, and secure to themselves and their posterity, the 
blessings of civil liberty.^ That necessity was a war- 
rant of their authority to establish for themselves, an 

1 In the Declaration of American Independence Is set forth the following 
catalogue of grievances, wliich impelled the Colonies to a political separation 
from the motlier Country : 

"The history of the present King of Great Britain is a history of repeated 
injuries and usurpations, all having in direct object the establishment of an 
absolute tyi-anny over these States. To prove this, let facts be submitted to a 
candid world." 

" He has refused his assent to laws the most wholesome and necessary for the 
public good ; he has forbidden his governors to pass laws of immediate and 

Eressing importance, unless suspended in their operation till his assent should 
e obtained, and when so suspended, he has utterly neglected to attend to 
them." 

"He has refused to pass other laws for the accommodation of large districts 
of people, unless those people would relinquish the right of representation in 
the legislature; a right inestimable to them, and formidable to tyrants only." 

" He has called together legislative bodies at places unusual, uncomfortable, 
and distant from the respository of their public records, for the sole purpose 
of fatiguing them into compliance with his measures." 

"He has dissolved representative houses repeatedly for opposing with manly 
firmness his invasion on tlie rights of the people." 

"He has. refused, for a long time after such dissolutions, to cause others to 
be elected, whereby the legislative powers, incapable of annihilation, have 
returned to the people at large, for their exercise, the State remaining in the 
mean time, exposed to all the dangers of invasion from without, and convul- 
sions within." 

" He has endeavored to prevent the population of these States, for that pur- 
pose, obstructing the laws for naturalization of foreigners ; refusing to pass 
others to encourage their migration hither, and raising the conditions of new 
appropriations of lands." 

" He has obstructed the administration of justice, by refusing his assent to 
laws for establishing judiciary powers ; he has made judges dependent on his 
will alone, for the tenure of their offices, and the amount and paymen t of their 
salaries." 

" He has created a multitude of new offices, and sent hither swarms of 
officers, to harass our people, and eat out their substance ; he has kept among 
us in times of peace, standing armies without the consent of our legislatures ; 
he has affected to render the military independent of, and superior to, the civil 
power; he has combined with others to subject us to a iurisdiction foreign to 
our constitution and unacknowledged by our laws, giving his assent to their 
acts of pretended legislation." 

6 



42 



OF GOVERNMENT. 



independent national existence;^ and being successful 
in their nndei'taking, they became a nation de facto ; 
and their independence being recognized by the nations, 
they became a nation de jure. 

g69. American independence was proclaimed " in the 
name and by the authority of the good people of the 
colonies;" it was established by their united power, 
acting under a common executive head^ and obeying a 

" For quartering large bodies of armed troops among us ; for protecting them 
by a moclv trial, from punishment for any murders whiola they shoula com- 
mit on the inhabitants of these States; for cutting off our trade with all parts 
of the world; for imposing taxes on us without our consent; for depriving us, 
in many cases, of the benefits of trial by jury ; for transporting us beyond seas 
to be tried for pretended ofleuses; for abolishing the free system of English 
laws in a neighboring province, establishing therein an arbitrary government, 
and enlarging its boundaries so as to render it at once an example and lit 
instrument for introducing the same absolute rule into these Colonies ; for 
taking away our charters; abolishing our most valuable laws and altering 
fundamentally the forms of our government; for suspending our own legisla- 
tures and declaring themselves invested with power to legislate for us in all 
cases whatsoever." 

" He has abdicated government here, by declaring us out of his protection, 
and waging war against us; he has plundered our seas; ravaged our coast; 
burnt our towns, and destroyed the lives of our people; he is at this time 
transporting large armies of foreign mercenaries to complete the work of 
death, desolation and tyranny already begun, with circumstances of cruelty 
and perfidy scarcely paralleled in the most barbarous ages, and totally 
unworthy the head of a civilized nation." 

"He has constrained our fellow-citizens, taken captive on the high seas, to 
bear arms against their country; to become the executioners of their friends 
and brethren, or to fall themselves by their hands." $ 

"He has excited domestic insurrection amongst us, and has endeavored to 
bring on the inhabitants of our frontiers, the merciless Indian savage, whose 
known rule of warfare is ap undistinguished distinction of all ages, sexes and 
conditions." 

" In every stage of these oppressions we have petitioned for redress in the 
most humble terms. Our repeated petitions have been answered only by 
repeated injury. A prince, whose character is thus marked by every act which 
may define a tyrant, is unfit to be tlie ruler of a free people. Nor have we been 
wanting in our attentions to our British brethren. We have Vvarned them, 
from time to time, of attempts by their legislature to extend an unwarrant- 
able jurisdiction over us; we have reminded them of the circumstances of our 
emigration and settlement here; we have appealed to their native justice 
and magnanimity: and we have conjured them by the ties of our common 
kindred to disavow these usurpations, which would inevitably interrupt our 
connections and correspondence. Tliey, too, have been deaf to the voice of 
justice and of consanguinity. We must, therefore, acquiesce in the necessity 
which denounces our sepai-ation, and hold them, as we hold the rest of man- 
kind, eneinies in war, in peace, friends." 

1 " We, therefore, the representatives of the United States of America, in 
general Congress assembled, appealing to the Supreme Judge of the world for 
the rectitude of our intentions, do, in the name, and by the authority of the 
good people of these Colonies, solemnly publish and declare that these United 
States are, and of right ought to be, free and independent States; that they 
are absolved from all allegiance to the British Crown, and tliat all political 
connection between them and the state of Great Britain is, and ought to be, 
totally dissolved ; and that as free and independent States, they have full 
power to levy war, conclude peace, contract alliances, establish commerce, and 
to do all other acts and things which independent States may of right do. 
And for the support of this declaration, with a firm reliance on the protection 
of Divine Providence, we mutually pledge to each other our lives, our for- 
tunes and our sacred honov." — Declaralion of American Independence. 

The obligations of protection on the part of the government, and allegiance 
on the part of the subjects, are mutual. If, therefore, a province or body of 
people, who are exposed to imminent peril, are utterly neglected or aban- 
doned, or, worse than either, are wantonly oppressed by their government, 
without any prospect or hope of redress or protection, they become perfectly 
free to provide for their own safety and pi-eservation, in whatever manner 
they find most convenient, without paying any regard to those who, by their 
conduct or neglect, were the first to fail in their duty. See Vattel, g 200; see also 
Dec Am. Ind., as to the rights of a people to throiv off their allegiance to government. 

« On the 19th day of June, 1775, a commission for George Washington was 
made out and signed by the President of Congress, in the words following: 

"Jn Congress. The delegates of the United Colonies of New Hampshire, 
Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Peun- 



THE UNITED STATES AS A NATION. 43 

coniniou legislative aiitliority ;' it was recognized by the 
nations as the achievement of the people of all the 
Colonics ; therefore, nationality attached to them in their 
associated capacity, as one i)eople, constituting one 
nation ; and not as thirteen peoples, constituting thirteen 
nations.^ 

^ 70. The people of the American colonies becoming a 
nation de facto and dejiire, by the establishment of their 



sylvania, New Ciistle, Kent and Sussex, on DelaM^are, Maryland, Virginia, North 
Oarolina and South Carolina, to George Waslungton, Esquire: We, reposing 
especial trust and conlldence in your patriotism, conduct and fidelity, do, l)y 
tliese presents, constitute and appoint you to be general and coniniander-in- 
cliicf of the army of tlio U nited Colonies, and of all tlie forces raised or to be raised 
by tliem, and of all otliers who shall voluntarily oiler their services, and join 
tlie said army for the defense of the American liberty and for repelling every 
hostile invasion thereof; and you are hereby vested with full power and 
authority to act as you shall think fit, for the good and welfare of the service. 
And we do hereby strictly cliarge and require all oflicers and soldiers under 
your command, to be obedient to your orders, and diligent in tlie exercise of 
tlieir several duties. And we do also enjoin and require you to be careful in 
executing the great trust reposed in you, by causing strict discipline and order 
to be observed in the army, and that the soldiers are duly exercised and pro- 
vided with all convenient necessaries. And you are to regulate your conduct, 
in every respect, by the rules and discipline of war, as herewith given to you, 
and punctually to observe and follow such orders anil directions from time to 
time, as you shall receive from this or ii future Congress of the said United 
Colonies, or a committee of (Jongross for that pui-pose appointed. By order 
of Congress. John Hancock, President. Dated Philadelpliia, June 19, 1775. 
Attest, ClTAKLKS TllOJiPSON, Secretary." 

I The (fi'st Congress of delegates appointed by the Colonies to take into con- 
sideration the situation of tli(^ provinces in North America, and the dillerences 
subsisting between tliem antl Great Britain, met at Carpenter's Hall, in tlie 
city of riiiladelphia, on the oth of Septeml)er, 1771. and organized by electing 
Pe.vton llandolpli tlieir Presiilent, and Charles Thompson their Seci'ctary. 
This (Congress continued in session until 20th of Octoljor following, when, 
having passed a rcsDlution on the ■22d of October, reconuiu'nding the delegates 
to meet again at riiiladelphia on the 10th of May,1775, they diss(jlved theirfirst 
session. The tlelegates, in pursuance of such recommendation, met again at 
Pliiladelphia on tli<! lOtli of iNIay, 1775, and again elected Peyton Randolph 
President, and Charles Thompson Secretary. This Congress was cpmposed of 
delegates from New Hampshire, Massachusetts Bay, Rhode Island and Provi- 
dence Plantations, Connecticut, New York, New Jersey, Pennsylvania, New 
Castle, Kent and Sussex, on Delaware, Maryland, Virginia, North and South 
Carolina, and Georgia. The President, Peyton Randolph, being obliged to 
return home, on the 21th of May, 1775, John Hancock was unanimously elected 
President. This Congress commissioned Washington as the commander-in- 
chief (see preceding note) of the army of the United Colonies, on the l!)th of 
June, 1775, and on the first of August ad.]ourned to thc.5th of September, 1775. 
On the 5th of September they again convened, and continued in session from 
time to time until the -1th of July, 177H, when they promulgated to the world 
the Deelaiation of American Indepcnilonce, and ordered it to be sent to thc> 
several assemblies, conventions .and committees or councils of safety, and to 
the several commanding officers of the Continental troops, and to be pro- 
claimed ill each of the United Statiis, and at the head of the army. 

- The people of the American colonies, in their united character and efTort, 
denominated them.selves The United Colonies or The United States. As 
a common society they were known by no other name. In the origin of the 
term, it signified the unity of the people of the colonies in the great work of 
achieving their common independence. The term, "The United States," 
usually applied to the people coniiiosing the sever.al States, rather than to the 
.States themselves as political instit iitions. The Union was that of the people, 
and not of the governments of the States. The State, as a political institution, 
had no national authority, for it had been created for no such purj;ose. The 
term " United States" was sometimes used both as a description, and also as 
a limitation, of the territory and of the people to whom nationalitv was 
accorded. Thus, in the definitive treaty of pe.ace between the United States of 
America and Great Britain, September .3d, 1783, " His Britannic Majesty acknow- 
ledged the said United States, viz., New Hampshire, &c., to be free, sovereign 
and independent States; that he treats with them as such," &c. It is to bo 
obsei-ved that he treats with them in their common or united cnaracter and 
capacity, and not in severalty. Great Britain, bv her minister plenipotentiary, 
D. Hartly, was treating with the United States through her ministers nlenipo- 
tentiary, John Adams, Benjamin Franklin and .John Jay, wno represented 
the people of all the States constituting the American nation. 



44 OF GOVERNMENT. 

independeuce, and the recognition of the same among 
the family of nations, they had sovereign authority 
to establish such a government as they deemed essential 
to the protection, security and prosperity of the Amer- 
ican people, as a nation ; hence, they had authority to 
institute a confederacy of the States, and vest in it the 
execution of the public authority ; or to establish a 
national government of the people, making the govern- 
ments of the several States subordinate thereto.^ 

g 71. Whenever the people institute a government to be 
intrusted with the execution of the public anthoritj^ 
the authority of such government must be derived from 
the people in whom sovereignty inheres ; and in the 
institution and endowment of such government, the 
nation necessarily asserts its authority to create, endow 
or revoke at pleasure. Hence, having tried the form of 
a confederated government, and found it inadequate to 
the needs of a sovereign nation, they had authority 
to lay it aside, and institute in its place, a national gov- 
ernment of the people; and to intrust it with the 
execution of such public authority as they deemed 
13roper. 

§ 72. Prior to the American revolution, the citizens 
of the American Colonies did not claim to be national 
subjects of any other government than that of Great 
Britain.^ Hence, when they attempted to throw off 

1 Sovereign authority to establish for itself such a form of government, and 
to invest it with the execution of such public authority, in respect to mat- 
ters of the general welfare, as it deems proper, must inhere in every nation. 
Sovereignty is an essential attribute of nationality. If it has not the author- 
ity to command in the last resort, but is amenable to higher authority, 
it has not the essential attribute of an independent nation. But it is to be 
remembered that this sovereignty inheres in the people constituting the 
nation — not in the government instituted by them. The authority of the 
government established by them is derivative, and may be general or limited, 
according to the constitution by which it is instituted and invested with 
authority; and having instituted a form of government, and intrusted it with 
the execution of the public authority, if it becomes destructive of the ends for 
which it was instituted, or even fails to accomplish the purpose of its creation, 
the people have the right to alter or to abolish it, and to institute a new govern- 
ment, laying its foundation on such principles, and organizing its pov/ei's in 
such form, as to tliem shall seem most likely to effect their safety and happi- 
ness. See Dec. Am. Ind. 

2 " In the first place, antecedent to the Declaration of Independence, none 
of the colonies were, or pretended to be, sovereign States, in the sense in which 
tlie term " sovereign " is sometimes applied to States. The term " sovereign," 
or " sovereignty," is used in different senses, which often leads to confusion of 
ideas, and sometinres to very raischievous and unfounded conclusions. By 
" sovereignty " in its largest sense is meant supreme, absolute, uncontrollable 
power, theiits summi imperii, the absolute right to govern. A State or nation is 
a body politic or society of men, united together for the purpose of promoting 
their mutual safety and advantage by their combined strength. By the very 
act of civil and political association, each citizen subjects himself to the 
authority of the whole ; and the authority of all over each member essen- 
tially belongs to the body politic. A State wliich possesses this absolute 
power without any dependence upoii any foreign power or State, is, in the 
largest sense a sovereign State ; and it is wholly immaterial what is the form 
of the government, or by whose hands this absolute authority is exercised. 
It may be exercised by the people at large, as in a pure democracy, or by a 
select few, as in an absolute aristocracy, or by a single person, as in an absolute 



THE UNITED STATES AS A NATION. 45 

their allegiance to the British crown, they assumed to 
act in virtue of their original authority as men, and not 
as citizens of any government. They repudiated their 
allegiance to, and hence their nationality through, the 

monarchy. But " sovereignty " is often used in a far more limited sense than 
that of which we have spolien, to designate such political powers as, in the 
actual organization of the particular state or nation, are to be exclusively 
exercised by certain public functionaries witliout the control of any superior 
autliority. It is in this sense tliat Blackstone employs it wlien lie says tliat is 
of " tlie very essence of a law, that it is made by tlie supreme power. Bover- 
reignty and legisUiture are indeed convertible terms; one cannot subsist with- 
out the otlier." Now in every limited goverume^it tlie power of legislation is, 
or at least may be, limited at tlie will of tlie nation, and theretbre the legisla- 
ture is not, in an absolute sense, sovereign. It is in the same sense that Black- 
stone says, " the law ascribes to tlie King of England tlie attribute of sover- 
eignty or preeminence," because, in respect to the powers contided to him, he 
is dependent on no man, and accountable to no man, and subject to no superior 
jurisdiction. Yet tiie King of England cannot make a law, and liis acts, 
beyond the powers assigned to him by the constitution, are void." Story on 
the Constitution, g 207. 

The Colonial Congress that assembled in Pliiladelpliia on the 5tli of Septem- 
ber, 1774, published a declaration of the rights of the subjects of Great Britain 
in the colonies, wliich contained the following: "Tlie good people of tlie 
several colonies of New Hampshire, Massacliusetts Bay, Rhode Island and 
the Providence Plantations, Connecticut, New Yorlc, New Jersey, Pennsyl- 
vania, Newcastle, Kent, and Sussex, on Delaware, Mar3dand, Virginia, North 
Carolina and South Carolina, justly alarmed at these arbitrary proceedings of 
parliament and administration, have severally elected, constituted and 
appointed deputies to meet and sit in general Congress in the city of Phila- 
delphia, in order to obtain such establislmient as that their religion, laws and 
liberties may not be subverted. Whereupon the deputies so appointed, being 
now assembled in a full and free representation of tliese colonies, tailing into 
tlieir most serious consideration the best means of attaining the ends afore- 
said, do, in the rirst place as Englishmen, their ancestors, in like cases liave 
usually done for asserting and vindicating their riglits and liberties. Declare, 

That the inhabitants of the Englisli colonies in North America, by the 
immutable laws of nature, the principles of the English Constitution, and 
the several charters or compacts, have the following rights: 

" Resolved, N. C. D. 1. Tliat they are entitled to life, liberty and property ; and 
that they liave never ceded to any sovereign power whatever, a right to dis- 
pose of either without their consent. 

" Resolved, N. C. D. 2. That our ancestors who first settled tlicse colonies were, 
at the time of their emigration from the mother country, entitled to all the 
rights, liberties and immunities of free and natural born subjects witliin the 
realm of England. 

'■'Resolved, N. C. D. 3. That by such emigration, they by no means forfeited, 
surrendered or lost any of those rights; but that they were, and tlieir descend- 
ants now are, entitled to the exercise and enjoyment of all such of them as 
their local and otlier circumstances enable them to exercise and enjoy. 

" Resolved, i. That the foundation of English liberty, and of all free govern- 
ment is a right in tlie people to participate in their legislative council ; and as 
tlie English colonists are not represented, and from tlieir local and otlier cir- 
cumstances cannot properly be represented, in the Britisli parliament, they 
are entitled to a free and exclusive power of legislation in their several pro- 
vincial legislatures, where their right of representation can alone be preserved 
in all cases of taxation and internal polity, subject only to the negative of 
their sovereign in such manner as lias been heretofore used and accustomed. 
But from the necessity of the case, and a regard to the mutual interests of 
botii countries, we cheerfully consent to the operation of such acts of the 
British parliament as are bona fide restrained to the regulation of our external 
commerce for tlie purpose of securing the commercial advantages of the whole 
empire to the mother country, and the commercial benefits of its respective 
members; excluding every idea of taxation, internal or external, for raising 
a revenue on tlie subjects in America, without their consent. 

''■ Resolved, N. C. D. 5. That the respective colonies are entitled to the com- 
mon law of England, and more especially, to the great and inestimable priv- 
ilege of being tried by their peers of the vicinage, according to the course of 
the law. 

" Resolved, Q. That they are entitled to the benefit of sucli of the English 
statutes as existed at the time of their colonization ; and wliich they have, by 
experience, respectively found to be applicable to tlieir several local and otlier 
circumstances. 

" Resolved, N. C. D. 7. That these, his Majesty's colonies, are likewise entitled 
to all the immunities and privileges granted and confirmed to them by royal 
charters, or secured by their several codes of provincial laws. 

" Resolved, N. C. D. 8. That they have a right peaceablv to assemble, consider 
of their grievances, and petition the King ; and that all prosecutions, prohib- 
itoi'y proclamations, and commitments for the same are illegal. 



46 OF GOVERNMENT. 

Britisli crown, that they might achieve foi themselves a 
new nationality.^ 

g 73. As the people of the several Colonies were 
united in the assertion of their independence, and 
unitedly achieved it; and as they unitedly claimed 
recognition, and were recognized as one nation ; they 
could claim and exercise national authority only as 
citizens of the nation. As citizens of a separate Colony 
or State, they had no claim to national authority, either 
from the necessity of the case, or from their individual 
achievement, or from the assent of the American 
people. Hence, neither the people of a separate Col- 
ony, nor the government thereof, had any authority to 
set up for themselves alone, a separate nationality ; or to 
exercise national prerogatives in derogation of the com- 
mon sovereignty of the American people.^ 

§74. In all democratic nations, national authority 
belongs to the people constituting the nation. This 
authority, with such limitations and restrictions as they 



" Resolved, N. C. D. 9. That the keeping a standing army in these colonies in 
times of peace, Avithout the consent of the legislature of that colony in which 
such army is kept, is against law. 

" Resolved, N. O. D. 10. It is indispensably necessary to good government, and 
rendered essential by the English Constitution, that the constituent branches 
of the legislature be independent of each other ; tliat therefore, the exercise of 
legislative power in the several colonies, by a council appointed during pleasure 
by the crown, is unconstitutional, dangerous, and destructive to the freedom 
of American legislation. 

"All and each of which the aforesaid deputies, in behalf of themselves and 
their constituents, do claim, demand and insist on as their indubitable rights 
and liberties, which cannot be legally taken from them, altered or abridged 
by any power whatever, without their own consent by their representatives in 
their several provincial legislatures." 

1 "We hold these truths to be self-evident, that all men are created equal; 
that they are endowed by their Creator with certain inalienable rights ; tliat 
among these, are life, liberty and the pursuit of happiness ; that to secure these 
rights, governments are instituted among men, deriving their just powers 
from the consent of the governed ; that whenever any form of government 
becomes destructive of these ends, it is the right of the people to alter or 
to abolish it, and to institute a new government, laying its foundation on such 
principles, and organizing its powers in such foi'm, as to them shall seem most 
likely to effect their safety and happiness." Dec. Am. Ind. 

2 The highest public authoritj' to be executed by any civil government, is the 
authority of the nation; because it is composed of the largest association 
of individuals for the purposes of civil government ; and the public authority 
consists of the authority of all over each. Hence a limited portion of such 
society, as a neighborhood or district, cannot possess as high public authority 
as the whole society together, upon the principle that the whole is greater 
than any of its parts. 

By the declaration that a nation is composed of the largest association of 
individuals, is not meant that all nations are composed of equal numbers 
of individuals, or that there may not be sovereign and independent nations 
composed of fewer persons than a moiety of another nation. The autliority 
of a nation does not depend upon the number of persons constituting it. 
Nations, as individuals, may differ in wisdom, wealth and power; but, like 
individuals, they are also equal in their rights as sovereign States, which 
do not depend upon considerations of that character. {See Vattel, Prelim., 
§15.) By the declaration that nations are composed of the largest number of 
individuals civilly associated together is meant, that a nation, as a society, can 
be included in no other civil association; that the highest civil' jurisdiction 
over any territory or people is that of the nation. 

Again, national autliority extends uniformly over all the territory embraced 
within the national domain. Hence, all citizens have equal national authority 
in every part of the nation. National laws, applicable to ail, are enacted, 
adjudged and executed by the same government. 



THE UNITED STATES AS A NATION. 47 

tliink proper to impose, is, by them, vested in a body- 
selected or created for that purpose, that it may be 
executed in respect to matters pertaining- to the general 
welfare. Hence, in the United States, national author- 
ity belongs to the people as constituents of the nation, 
and not as citizens of any domestic State or territory; 
and they have sovereign authority to institute such forms 
of government, and to intrust them with the execution of 
such public authority, as they deem proper.^ 

§ 75. The sovereign authority essential to the estab- 
lishment and maintenance of government, inheres in, 
and resides with the people ; and hence, the authority 
of government is derivative. In democratic republican 
countries, government is an institution of the people, 
established by them to be intrusted with the execution 
of the public authoi'ity. Hence, in such countries, gov- 
ernments derive their authority from the people ; and can 
act only in virtue of the authority intrusted to them.^ 

1 Not unfrequently the authority of the government is confounded with the 
authority of tlie people instituting it. It sliould never be forgotten tliat gov- 
ernments are institutions of the people, and possess no original authority. 
In tlie discussion of questions connected with the origin of tiie national gov- 
ernment, a class of politicians commit this error, and are constantly talking 
of tlTe sovereignty of the States, from which they argue that the national 
government is but a creation of the State governments, instituted by 
them, and not by the people of the United States. They seek to make the 
State governments the source and fountain of political sovereignty, as though 
the people, in the institution and endowment of tljese governments, had 
exhausted their own authority, by transferring it irretrievably to these State 
institutions; and from thencefortli these State governnu'nts had authority to 
do wliat they pleased, and the people had none except through them. If these 
State governments have such absolute authority, from wlience did they receive 
it? Not, certainly, from Great Britain, while they were provincial Colonies. 
Not from the people, when they united to declare and achieve their common 
independence. Not by the recognition of the nations as constituting such an 
independent nation. As Colonies they set up no claim to national sovereignty, 
and would not have been entitled to recognition had they done so. Independ- 
ence was proclaimed and achieved in the name and by the authority of "</ie 
people" and not in the name and by the authority of the several local govern- 
ments; and the independence achieved was recognized as applying to the 
united, not the separate States. The State governments, as political institutions, 
were derived from the people, and existed and acted only by the authority of 
the people. As such governments, they had no original sovereignty, and 
hence could act in virtue of no such authority. The people could use them 
in providing means to assert and maintain their independence; but could 
derive no authority from them to proclaim and establish the same, for that 
authority inhered in the people themselves, independent of all governments. 

The true statement of the case is simply this: The people who severally 
instituted these State governments, and intrusted them with the execution of 
the public authority in certain matters, wished to unite all the Colonies or 
States as one people, to resist the aggi'essions of the British crown, and, 
if necessary, to establish a common independence. They did not resort 
to these institutions of their.s to obtain authority to form this union, or to pro- 
claim their independence. In this respect, they acted in virtue of their inhe- 
rent .sovereignty. They used their State governments as instruments to bring 
about the necessary union of action, and also to furnish the means necessary 
for accomplishing their undertaking. These State governments were institu- 
tions of their own creating, over which they had sovereign authority. 

And when they had achieved their common independence, and had become 
national, as well as State citizens, they had authority to establish for them- 
selves as a nation, such a form of government as they deemed most expedient. 
They could confederate their several governments for national purposes, and 
delegate to the confederation such authority as they thought proper, trusting 
to the faith of the States; or they might institute a governinent of the people, 
and vest in it the execution of all national authority. 

• " State legislatures as jxtlitical bodies, however sovereign, are yet not 
sovereign over tlie people. So far as the people have given power to the gen- 



48 OF GOVERNMENT. 

% 76. When tlie people institute a government, and 
intrust it with the execution of the public authority, 
they do not thereby divest themselves of, or in any 
degree abridge, their inherent sovereignty. That is 
inalienable. In the institution of government, they 
merely create a body or person to be intrusted with 
the execution of their authority, to the extent and in the 
manner by them prescribed in their Constitution ; and 
when the government is so intrusted with the execution 
of the public authority, it is, nevertheless, subject to 
that sovereignty that gave it existence.^ 

g 77. As sovereignty is the supreme authority and 
power by which a State is governed, and implies the 
right of commanding in the last resort, it follows, that 
as an attribute of civil society, it can only attach to the 
people as a whole or nation ; and not to them, as a lim- 
ited portion or moiety of a nation ; for, as the largest 



eral government, so far the grant is unquestionably good, and the government 
holds of the people and not of the State governments. We are all agents of 
the same supreme power, the people. The general government, and the State 
governments derive their authority from the same source." Webster in U. S. 
Senate, in reply to Hayne ; Gales and Seaton's Reg. Vol. 6, pt. 1, p. 74, 1829, 1830. 

"In Europe, sovereignty is of feudal origin, and imports no more tlian the 
state of the sovereign. It comprises his riglits, duties, exemptions, preroga- 
tives and powers. But with vis, all power is with the people. They alone are 
sovereign, and they erect wliat government they please. None of these gov- 
ernments are sovereign in the European sense of the word, all being restrained 
by written Constitutions." See Webster's reply to Calhoun in the Senate of the 
United States, Feb. 16, 1833. 

1 Says BuELAMAQUi : " This sovereignty resides originally in the people. 
But when they have once transferred it, they cannot, without contradiction, be 
supposed to continue masters of it. When the people establish a government 
and confer upon it the supreme power, that is, the power to determine what 
measures are necessary to preserve civil society, to promote its prosperity ; to 
punish those who disturb its peace or plot its destruction ; to settle differences 
among its members, and to enforce the judgments which it pronounces, it is 
evident that they part with their sovereignty." He adds : " The government 
m y enact laws to which the people are opposed ; yet there is no question that 
they are bound to obey them, and that the government has the right to enforce 
obedience, and was instituted for that purpose." See Principles of Politic Laws, 
Ch. 7, §? 10, 11 and 12. 

The error in the reasoning of the learned author consists in this : He separates 
between the authority of the people and the authority of their government. 
This attribute of sovereignty in the people exists because of the necessity of 
the case, as society could not exist without it. But this sovereign authority 
must be executed, or it might as well not exist ; and society as an unorganized 
mass, cannot execute it ; therefore, necessity compels society to institute means 
for executing tlieir authority, not the authority of the agent employed. 
Hence, the necessity of establishing a government, to be the agent or instru- 
ment of the people in executing their authority. It is true that the people 
individually are bound to obe-^' the laws enacted and adjudged by the govern- 
ment, because they are enacted by the sovereign authority of the people, 
through the instrumentality ordained by them for that purpose ; but if the 
government departs from that authority, and enacts laws upon its own 
lesponsibility alone, individuals, even, are not bound to obey them. 

BuBiiAMAatJi overturns his own theory on this point in the very next 
section. He says, § 13: " It may be asked if the people have parted with their 
sovereignty by establishing a government, what control have they over it, and 
in what does their power consist ? We answer, that they still retain the power 
to alter or abolish it at their pleasure." 

What! have the people sun-endered to the government, their sovereignty, 
and yet retained it to be exercised at their pleasure? This cannot be. They 
have intrusted the government with the execution of their authority over 
matters committed to it, because it could be executed in no other way. But 
the government, in all it has a right to do, is but the servant of the people and 
answerable to them. 



THE UNITED STATES AS A NATION. 49 

societies of men, civilly associated, constitute nations, 
and as the highest public authority to be executed by 
civil government is the authoritj^ of the nation, it fol- 
lows that the authority of the nation must be sovereign 
within its territorial limits; that is, it cannot be subject 
to question or resistance by any other lawful authority. 

% 78. That necessity which requires the people of a 
nation to possess sovereign authority in all matters per- 
taining to the general welfare, is incident to national 
existence. Hence sovereignty is a necessary attribute 
of every nation — one which inheres in the people in 
their national character. The people of the United 
States, as a nation, possess this necessary attribute, and 
hence, have sovereign authority over all matters of 
general interest within their territorial limits. 

g 79. This sovereignty pertains to the people of the 
United States as national citizens only, and not as citi- 
zens of any other government. There cannot be two 
se])arate and independent sovereignties within the same 
limits or jurisdiction ; nor can there be two distinct and 
separate sources of sovereign authority within the same 
jurisdiction. The right of commanding in the last 
resort can be possessed only by one body of people 
iiihabiting the {?ame territory,^ and can be executed 
only by those intrusted with the execution of such 
authority. 

g 80. The people of the United States, as a nation, 
have supreme authority over all matters pertaining to 
the general welfare, within the territorial limits of the 
nation ; and they have authority to .determine by whom, 
and in what mode the public authority shall be exe- 
cuted ; what rights, duties and powers shall pertain to 



1 The characteristics of sovereignty are such as to demonstrate the correct- 
ness of the above. Sovereignty necessarily inheres in the people of a nation, 
to be used for the establishment and maintenance of public order and security, 
and for the protection of private rights. And being the right of commanding 
in the last resort in all matters pertaining to the public weal, certain charac- 
teristics must inevitably attend upon it. 

1. The first characteristic of sovereignty is, that it is a supreme and independ- 
ent powei — one which judges and determines in the last resort of whatever is 
susceptible of human direction, relating to the welfare and advantage of 
society, and can acknowledge no superior on earth. Whatever it ordains in 
the plenitude of its power, cannot be reversed by any other human will as 
superior to it. Since human power cannot be increased to infinity, there must 
necessarily be a limit, beyond which there is no sviperior authority. And 
whatever the form of government, there must inevitably be a supreme tri- 
bunal, beyond which there can be no appeal. 

2. A second characteristic of sovereignty is, that it is not accountable for the 
exercise of its authority, nor liable to punishment; for it has no superior. 
Hence, it is manifestly apparent that sovereignty belongs to the people in their 
highest civil character alone, and not to any person or body having only deri- 
vative authority; that while governments exercise sovereign authority, it is 
the sovereign autliority of the people, and no: of the government as the mere 
institution of the people. See BMii.a7uaquV & Prin. Pol. La/iv, ch. 7, §2 1*^* 



50 



OF GOVERNMENT. 



the national government, and what to th^ ^o^^e^'iinenti, 
of the States."^ 

% 81. The sovereign authority essential to tha estab- 
lishment and maintenance of a national government 
inheiiug in, and remaining witli, the people of the 
United States, they are authorized to establish a 
national government in such form, and vest in it such 
I)owers in respect to the general welfare, as they deem 
proper.^ And they, also, have authority to establish 
State governments, and vest in them the execution of 
such public authority as they deem expedient; and, in 
virtue of the same sovereignty, they can enlarge or re- 
strict the limits of State or national authority at 
pleasure.^ 

g 82. Sovereignty, as an attribute of the people of the 
United States as a nation, excludes the like sovereignty 

1 " If the government of the United States be the agent of the State govern- 
ments, then they may control it, restrain it, modify it, or reform it. It is 
observable enough that the doctrine for wliicli tlie gentleman contends leads 
him to the necessity of maintaining, not only that tliis general government is 
the creature of the States, but tliat it is tlie creature of each of the States 
severally; so that each may assert tl:e power for itself, of determining whether 
it acts within the limits of its authority. It is the servant of four and twenty 
masters of different wills and different purposes, and yet bound to obey all. 
This absurdity — for it seems no less — arises from a misconception as to the 
origin of this government in its true character. It is, sir, the people's constitu- 
tion, the people's government; made for the people ; made by the people, and 
answerable to the people. The people of the United States have declared that 
this constitution sliall be the supreme law. We must either admit the prop- 
osition or dispute their autliority. The States are unquestionably sovereign, 
so far as their sovereignty is not affected by tliis supreme law. But the State 
legislatures, as political bodies, however sovereign, are yet not sovereign over 
the people. So far as the people liave given power to the general government, 
so far the grant is unquestionably good, and the government holds of the 
people, and not of the State governments. We ai'e all agents of the sanie 
supreme power — the people. The general government and the State govern- 
ments derive their authority from the same source. Neither can, in relation 
to the other, be called primary, though one is definite and restricted, and the 
other general and residuary. Tlie National government possesses those 
powers which it can be shown the people have conferred upon it, and no more. 
AH the rest belongs to the State governments or to the people. So far as the 
people have restrained State sovereignty by the expression of their will in the 
Constitution of the United States, so far it must be admitted State sovereignty 
Is effectually controlled." Webster's reply to Hay ne in United Hiates tS'enate, Jan. 
27, 1830. G. <fc 8. Rep. of Cong. Deb., Vol. 6, p. 1, page 74. 

2 This follows from the doctrine that the sovereignty essential to the estab- 
lishinent and maintenance of government, inheres in, and remains with the 
people ; together with the further principle or doctrine, that the authority to 
legislate for tlie government of society belongs to the sovereignty. Says 
Blackstone: " The very essence of a law is, that it be made by the supreme 
power. Sovereignty and legislature are, indeed, convertible terms; one can- 
not exist without the other." (1 Black. Com.., 46.) By which is meant, the 
authority to make a law binding upon the people must be sovereign. In other 
words, he defines municipal or civil law to be, " a rule of civil conduct pre- 
scribed by the supreme power in a State," &c. (1 Com., 44); " for legislature is 
the greatest act of superiority that can be exercised by one being over 
another," (idem, p. 46.) 

3 The territory constituting the field of State jurisdiction, is within the 
jurisdiction of the nation ; and the American people as a nation, possess and 
exercise the authority of drawing the line of jurisdiction between the State 
and national government according to their sovereign pleasure. Besides, as 
has already been stated (a?ii'e. g 79 anri noie), there cannot be two independent 
sovereignties within tlie same limits or jurisdiction ; nor can there be two 
distinct and separate sources of sovereignty within the same jurisdiction. 
If the people of the nation, as a natioii, possess sovereign authority in 
respect to all matters pertaining to the general welfare, then the people of the 
State, as State citizens merely, cannot possess such authority, except as 
derived from the nation. 



THE UNITED STATES AS A NATION. 51 

of the people of a single State, as State citizens merely. 
Hence, tbe authority of a citizen as a constituent of the 
nation, is superior to his authority as a constituent of a 
mere State or territory. Hence, also, when the nation 
assumes to confer upon the national government exclu- 
sive authority over any particular class of subjects, the 
people of a particular State have no legal i)o\ver to 
question or deny such grant, though it encroach upon 
what before belonged to their peculiar jurisdiction.^ 

.§ 83. In the United States, the people of a particular 
territory have no authority to vest themselves with the 
rights, powers and prerogatives of a State ; nor can 
they lawfully exercise anj^ public authority, except 
under the enabling power conferred b}^ the nation. 
They can draft the frame-work of a government, and 
the form of a cons} i tut ion ; and can ask to be endowed 
with authority to govern themselves in all matters local 
and domestic. But they can give to their constitution 
no authority, and to theii- government no life or power. 
That must come from those in whom sovereignty resides.^ 

g 84. The national and State governments are insti- 
tutions of the people, and each derives its existence and 
authority from the same source. Hence, they are 
instituted in such form, clothed with such powers, and 
subject to such limitations, as the jjeople of the nation 
in their sovereign tv ordain.^ 

1 This likewise is a corollary flowing from tlie propositions that sovereignty- 
is an essential attribute of nationality (§77 cmte); and that there cannot exist, 
at the same time, and within tlie same limits or jurisdiction, two separate and 
distinct sovereignties or sources of sovereign authority, (g 79 ante.) Hence, if 
tlie people of the United States as a nation, are sovereign, and can exercise 
sovereign authority throughout the territorial limits of the United States, 
they have tlie authority to determine in Avliat body or bodies, the execution 
of the public autliority shall be vested ; and from them as a nation, must come 
the authority to exercise tlie functions of government within the national 
limits. Practically, in the institution of local or State governments, this doc- 
trine is observed. Tlie people ol a territory within the United States, liowever 
numerous, cannot clothe themselves with the autliority of self-government 
even in local and domestic matters. They are obliged to obtain the consent 
of the nation through the national legislature, which, so to speak, becomes an 
act of political enfranchisement. This will be fully considered when the 
origin, nature and autliority of the States v.'ithin the Union come under con- 
sideration. 

2 According to the Constitution of the United States, the territories are to be 
under the regulation and control of Congress; and no new State can be formed 
or admitted except by the authority of Congress, as expressing the legislative 
will of the nation in respect thereto ; and besides, the United States or nation, 
ai'e to determine the /ocm of the State government, and to guarantee that it 
shall be republican. (See ?§ 3 and 4 of the 4th Art. of Const. U. S.) But this 
subject will be fully considered when the State governments come under con- 
sideration. 

3 See Welister's reply to Robert Y. Hayne, in the United States Senate, 
Jan. 27, IS.iO, where this proposition is fully discussed. 

The truth of this proposition in respect to the general government is appar- 
ent from the manner in which the government was established, the object of 
its institution, ami the subject matters of its jurisdiction and administration. 
The preamble of tlie Constitution of the United States recites it as an ordi- 
nance of the people. "Wf the people of the United States * * * do ordain 
and establish this Constitution."' It was framed by delegates from the several 
States then existing ; it was submitted to the people of the States to be ratified 



52 OF GOVERNMENT. 

g 85. State governments being instituted by, and 
deriving their authority from, the nation, they are 
invested with the same authority over matters within 
their jurisdiction, as the national government, over 
matters within its jurisdiction, to wit : the authority of 
the nation. Hence, the authority exercised by the State 
over matters within its jurisdiction, is sovereign and 
absolute ; they are commissioned to execute the will of 
the nation in respect to i)ublic interests of a local and 
domestic character.'^ 

g 86. The national and State governments being insti- 
tutions of the nation, and amenable to its authority, 
hold the authority with which they are intrusted, at the 
pleiisure of the nation. As in their origin, the people 
determined the extent and limitation of the authority 
to be intrusted to each, so, in their continuance, they 
are subject to the supervision and control of the same 
supreme authority.^ 

g 87. Neither the national nor the State governments, 
as political institutions, are constituent elements of the 
Union. They are each institutions of the nation — cor- 
porate instruments, created hj it, to execute its authority 

by them ; it was thus ratified by the people of all the States, and in their 
name, and by their authority, it became tlie Constitution of tlae United States. 
It provided tliat tlie Constitution, and the laws of the United States made in 
pursuance thereof, and all treaties made, or wliicla should be niade, under the 
authority of the United States, sliould be the supreme law of the land ; and 
the judges in every State should be bound tliereby, anytliing in the Constitu- 
tion or laws of any State to the contrary notwithstanding. (Art. 6, 2d clause.) 
Article 5 also provides tliat the Congress, wlienever two-tliirds of botli Houses 
should deem it necessary, should propose am.endments to this Constitution ; 
or on the application of the legislatures of two-thirds of the several States, 
should call a convention for proposing amendments, whicl:^ in either case, 
should be valid to all intents and purposes as part of the Constitution, when 
ratified by the legislatures of three-fourths of the several States, or by conven- 
tions in three-fourths thereof, as the one or the other mode of ratification might 
be proposed by the Congress. 

By an examination of these provisions it will be manifest that the govern- 
mental authority of the whole country was conceded to be in the people of 
the United States as a nation ; to be exercised by them, tlirough tlie agency 
of such governments as tliey deemed necessary and proper to establish. This 
will be made clearly to appear, in the chapter upon States within the limits of 
the United States. (See po,si!.) 

1 The people of the nation, in the institution of the national government, 
assigned to the then existing States the limits of their jurisdiction, by super- 
■ imposing the national government with its jurisdiction; and the same 
authority which thus circumscribed the authority to be exercised by the then 
existing States, could, at its pleasure, withdraw every subject from their 
jurisdiction, and confer upon the national government plenary powers in 
respect to all governmental matters within the territorial limits of the United 
States. Is it objected that the people of the several States would never agree 
to amendments of the national Constitution giving sucla plenary powers to be 
exercised by the national government? That may be so. But, as citizens of 
the nation, they have authority to agree to it, and that is all that is contended 
for. Thus, it will be perceived, that the jurisdiction reserved to the several 
States then existing, was by the permission or authority of the nation : that 
in respect to new States, none can be organized and enfi'anchised with political 
rights as States, except by the authoi-ity of Congress, and in such form, 
and under such a Constitution as it shall approve. Thus the State governments, 
as political institutions, take their existence and authority from the nation, 
and hence administer under such authority. This will more fully appear 
hereafter. (See pout p. 298-32G: Appendix 120.) 

a (Seeijosf Appendix 120.) 



THE UXITED STATES AS A NATION". 53 

within their respective jurisdictions. They cannot be 
considered constituent elements of the nation, since thej^ 
were instituted by it, to be intrusted with the execution 
of its authority.^ 

^ 88. Since the national and State governments derive 
their existence and authority from the national will, 
and are not constituent elements of the Union, national 
existence, sovereignty and integrity de})end not ui)on 
the continuance of tliese governments. The institution 
of a State government within the Union adds nothing 
to the sovereignty or administrative authority of the 
nation. Hence, the dissolution of such a government 
can take nothing therefrom. 



CHAPTER 11. 

OF THE UNITED STATES AS A GOVEENMENT. 

g 89. The United States as a civil government, was 
instituted by the people, who constitute the United 
States as a nation. As a government of the people, it 
was instituted by them in order to form a more perfect 
union; to establish justice ; to insure domestic tran 
quillity ; to provide for the common defense ; to promote 
the general welfare, and to secure the blessings of liberty 
to themselves and their i)osterity.^ 

1 A constituent element of a body is that wlaich is essential to its exist 
ence as a component part thereof. Hence, if the people Of tlie United States 
were a nation prior to the institution of tlie general government by them, then 
such government cannot be a constituent element or component part of the 
nation. So of the State governments. Tlie political existence of each State 
in tlie Union is not a component part of the nation, because the national 
unity is tlie same whether there are few or many States. When the govern- 
ment was instituted there were thirteen of tliese local institutions, since 
wliich there have been created twenty-three more; yet the nation has not 
been changed in its existence or political character. Its authority remains 
unchangeii. It is tlie same nation, and will continue the same, should the 
number of States be increased indefinitely. Now, it is most manifest tliat the 
nation does not depend upon the institution of these local governments for 
its existence or authority. Tliose whicli were in existence at tlie time of the 
adoption of the national constitution, continued by the permission of the 
people as a nation ; and they possess such governmental authority as remained 
to tlieni after tlie nation had ordained what sliould belong to the general 
government. Those twenty-three States or local governments which have 
since been instituted, have taken their charter to govern, from the nation — 
hence are institutions of the nation. 

1 " We, the people of the United States, in order to form a more perfect union, 
establisli .justice, insure domestic tranquillity, provide for the common defense, 
promote the general welfare, and secure tlie blessings of liberty to ourselves 
and our posterity, no ordain and establish this Constitution of the United 
States of America." Preamble to (he ComlUution of the United States. 

The draft of this Constitution was prepared by delegates from all the States, 
who were appointed for that purpose by their several legislatures, on the 
recommendation of Congress, dated Feb. 21, 1787. A part of these deputies, or 
delegates, met in convention at the State House, in Philadelphia, on the 14th 
day of Ma.v, 1787, and adjourned, from time to time, until a quorum appeared, 
on the 2-5th of May. They continued in session until the 17th of September 
following, when, having perfected the draft of the Constitution, they signed it, 



54 



OF GOVERNMEKT. 



§ 90. By government is liere meant, that body cor- 
porate to which the people have committed the exercise 
of their authority over matters pertaining- to their 
general welfare as a nation. It is a cori)oration of offi- 
ces, to which are attached rights, duties and powers 
deemed essential to, and given for the pnri)ose of form- 
ing a more perfect union, establishing justice, securing 
domestic tranquillity, providing for the common defense, 
promoting the general welfare, and securing to them- 
selves and their posterity the blessings of civil liberty. 

^ 91. The body of this government is distinct from 
the body of the nation. It was instituted for the sole 
purpose of being intrusted with the exercise of 
national power and authority in all matters committed 
to its jurisdiction. Hence, the existence of the nation 
is independent of any particular form of government 
instituted by it, or of any degree of authority intrusted 
to its execution. 

and reported the same to Congress. On the 28th of September, 1787, Congress 
unanimously resolved to transmit the report, &c., to the several legislatures, 
to be submitted to a convention of delegates to be chosen in each State by the 
people thereof, in conformity to the resolves of tlie convention. (See Appen- 
dix.) The several States proceeded to provide for the calling of these conven- 
tions of delegates, to be chosen by the people for the purposes expressed in the 
resolutions accompanying the draft (see Appendix); and such proceedings were 
had, that conventions to ratify the Constitutioii were held in all the several 
States, and the Constitution was ratified, and ordained, by each of these con- 
ventions, or deputies of the people, in tlie name, and by the authority of, the 
people themselves. (See Appendix.) 

The citizens of the nation were also citizens of the several States, and were 
as directly connected with, and interested in, the general government, as in 
their respective State governments. The proposition was to institute a general 
government for national purposes only; leaving the State governments to 
administer only in local and domestic matters. And the people were alike 
citizens of both governments, and had tlie like authority over each. Citizen 
A, of the State, asked citizen A, of the nation, being the same individual, 
wliether, in his opinion, the general welfare required that the interests of the 
people, as a nation, should be provided for and secured by a general government 
of tlie people, or whether it should be committed to the diverse wills and 
interests of thirteen independent local governments. After an experience of about 
thirteen years, trusting to these local governments to provide for the common 
defense, and to promote tlie general welfare, the unanimous opinion of the 
people was given in favor of the establishment of a general, or national govern- 
ment, and tliey ordained and established the national Constitution for that 
purpose. 

See also the opinion of the Supreme Court of the United States, in Hunter v. 
ilfa?-<m, 1 Wlieat. Rep., o0')-321; also McCalloch v. j)/a7V/to'xrf,.4 Wheat. Rep., 316, 
401. &c.; also CoAe/is v. Fw-f/i/ua, 6 Wheat. Rep., 263, 41o, 414; also Story, Const., B 
463; (see appendix.) Extracts from Webster, in reply to Hayne, in United 
States Senate, Jan. 27, 1830 ; also in reply to Calhoun, in United States Senate, 
Feb. 16, 1833. 

The people of the United States, as a nation, declared and achieved their 
common independence, and were recognized as a nation, before they estab- 
lished their government. Tliey attempted to make use of the governments of 
the States as an instrument by which to administer in matters pertaining to 
the general welfare, and articles of confederation were entered into for that 
purpose. (See Articles of Confederation, in Appendix.) These articles were 
drawn up and agreed to during the progress of the revolution (Nov. 15, 1777), 
and though declared to be perpetual, they were evidently only suited to the 
then existing revolutionary state of things. The principal powers had respect 
to the operations of war, and would be dormant in times of peace. Says Judge 
Story, in his Commentaries on the Constitution, ? 215, " They, the Congress, 
wei-e indeed clothed with authority of sending and receiving embassadors; 
of entering into treaties and alliances; of appointing courts for the trial of 
piracies and felonies on the high seas; of regulating the public coin ; of fixing 
the standard of weight's and measures ; of regulating trade with the Indians ; 



THE UNITED STATES AS A NATION". 55 

g92. Tliis civil govern iiient was instituted by the people 
for DO other ])nri)oses, and it is intrusted with the exer- 
cise of no other rights, duties or ])owers, than are enu- 
merated or implied in the Constitution of the United 
Stiites. Hence, as a government, or body cori)orate, it 
has no original or inherent sovereignty per se.^ It is a 
mere instrument or agency of the nation, by means of 
which the people are enabled to exercise their authority 
and powers over matters within the jurisdiction of the 
general government.^ 

§ 93. As the authority of this government is derived 
from the peoi)le, and is lield by it in trust for the par- 
ticular x)urposes specified in the constitution, should it 
assume to exercise authority over subjects not within 
its ex]>ressed or implied jurisdiction, or in a manner 
other thjiu that directed or recognized by the constitu- 
tion, such proceedings would be without authority, and 
void.^ 



of establishing; Post-oflices; of borrowing; money, and emitting bills on credit 
of the United States; of ascertaining and appropriating tlie sums necessary 
for defraying the pulilic expenses; and of disposing of tlie western territory. 
And most of these powers required for their exercise tlie assent of nine States. 
But tliey possessed not the power to raise any revenue, to levy any tax, to 
enforce any law, to secure any right, to regulate any trade, or even the poor 
prerogative of commanding means to pay its own ministers at a foreign court. 
They could contract debts, but they were without the means of discharging 
them. They could pledge the public faith, but they were incapable of redeem- 
ing it. They could enter into treaties, but every State in the Union might 
disobey them with impunity. They could contract alliances, but they could 
not command men or money to give them vigor. In short, all powers which 
did not execute themselves,' were at the mercy of the States, and might be 
trampled upon at will with impunity." 

Says a writer in the American Museum (1780, p. 270): " By this political com- 
pact — the articles of confederation — the United States, in Congress, have 
exclusive power for the following purposes, without being able to execute one 
of them : they may make and conclude treaties, Isut can only recommend the 
observance of them. They may appoint embassadors, but cannot defray even 
the expenses of their tables. They may borrow money in their own name, 
on the faith of the Union, but cannot pay a dollar. They may coin money, but 
they cannot purchase an ounce of bullion. They may make war, and deter- 
mine what number of troops are necessary, but cannot raise a single soldier. 
In short, they may declare everything, l)ut do nothing." See also Mr. Jay's 
Letter, addressed to the people of New York, 17S7. M Am. 3Ius., pp. 534, 556. 

During all tiiis lime the people of tlie United States were a nation ; and as a 
nation, had autliority to institute a government, and clothe it with plenary 
powers ; but, until the adoption of the national constitution, they had failed 
to do so. 

1 This branch of the proposition cannot be made more .apparent by discus- 
sion. When a corporate liody is created for a particular purpose, and is clothed 
with powers only to enable it to accomplish the purpose of its creation, it can 
have no original authority of its own underived from the authority creating 
and endowing it. 

2 In democratic countries, governments are instituted for their use to the 
people, and not for their benefit to the corporation, called government. They 
are intrusted with the exercise of the public authority, for the benefit of society 
and the mem1>ers thereof; not for tlie glory and advantage of those intrusted 
with the administration of the public autliority. The general government was 
instituted by the people to administer in respect to matters pertaining to tlieir 
welfare as a wliole, or nation ; because, without such an agency, the general 
welfare could not be promoted. 

3 It is universally admitted that the government of the United States is one of, 
delegated powers only, and that it can exercise no power not expressly 
granted, or necessarily implied. That the Constitution is the fundiimental law 
of its institution, and that in it we are to look for the grant of any authority 
or power it can exercise. 



56 



OF GOVERNMENT. 



g 94. This government has no other authority tham 
the authority of the nation, as expressed or implied in 
the coustitntion. Hence, having no authority of its 
own, distinct from that of the people, when it acts 
within the sphere of its constitutional powers, it 
exercises the supreme and sovereign authority of the 
nation.^ 

g 95. When the people of the United States, as a 
nation, ordained this constitution, they thereby insti- 
tuted the general government, and endowed it with the 
rights, enjoined upon it the duties, and intrusted it with 
the exercise of the powers specified in the constitution. 
Hence, in the exercise of the rights, duties and powers 
thus conferred and enjoined, the government acts, in 
the name and by the authority of the nation, and not 
otherwise. 

g 96. It was the manifest intention of the people of 
the United States, when they iustituted the general 
government, to make it national in character, and per- 
manent in duration.^ Hence, the duties enjoined upon, 

1 When the authority of the government is spoken of, it should be remem- 
bered that the authority is tliat of the people instituting the government, and 
intrusting it with the exercise thereof in the manner prescribed, for their 
common benefit. A common error prevails in this respect, confounding 
the government instituted with the people or nation instituting it. In speak- 
ing of the government, some use the term in the sense of the nation ; others 
use it in the true sense, and speak of its authority as being limited b5^ the 
terms of the grant, and held in trust for the common beneiit of those insti- 
tuting the government. By this indiscriininate use of the term, " the govern- 
ment," some ascribe to it too much authority, by confounding it with the 
nation; others ascribe to the nation too little authority, by confounding it 
with the government. If, in the discussion of these questions, all are agreed as 
to the fundamental principles, and as to the meaning of terms- to be used, and 
then use understandingly the same terms in making the application of those 
principles, there will be little opportunity for differing in their conclusions. 
Thus, suppose all agree to the principle that the people as a whole, are the sove- 
reigns ; and that the authority to govern must come from them. That they 
institute a government for the purpose of intrusting it with the execution of 
such public authority as they deem necessary for accomplishing certain speci- 
fied purposes. Hence, the government, in such case, is an institution of the 
people, deriving its authority from tiiem, to be exercised»for their common 
welliire, over the subjects, and in the manner prescribed. Agreeingupon these 
principles, and making use of terms which are understood alike, there will be 
little opportunity of arriving at different conclusions. 

'■2 " If it had been the design of the framers of the Constitution, or of the 
people who ratified it, to consider it a mere compact, resting on treaty stipula- 
tions, it is difficult to conceive that the appropriate terms should not have 
been found in it. The United States were no strangers to compacts of this 
nature. * * * The only places where the term confederation or compact are 
found in the Constitution, apply to subjects of an entirely different nature, 
and manifestly in contradistinction to Constitution. Thus, in the 10th section 
of the 1st article, it is declared : ' No State shall enter into any treaty, alliance, 
or confederation.' ' No State shall, without the consent of Congress, enter into 
any agreement or compact with another State, or with a foreign power.' 
Again, in the sixth article it is declared, 'that all debts contracted, and 
engagements entered into, before the adoption of this Constitution, shall be as 
valid against the United States under this Constitution as under the confedera- 
tion.' Again, in the tenth amendment it is declared, 'that the powers not 
delegated by the Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people.' A contract can in no just sense 
be called a delegation of powers." S/.ori/ on the Constitution, g 353. 

"But that which would seem conclusive on the subject is the very language 
of the Constitution itself, declaring it to be a supreme fundamental law, and 
to be of judicial obligation and recognition in the administration of justice. 
'This Constitution,' says the sixth article, 'and the laws of the United States 



THE UNITED STATES AS A NATION. 57 

and tlie powers intrusted to, the general government, 
are ada[)ted to, and sufficient for, that purpose.^ 

§ 97. When the people of the nation ordained and 
established the Constitution of the United States, they 
thereby instituted a national government, amenable 
only to themselves as a nation ; and they clothed it 
with authority and power suflScient for national pur- 
poses.^ And by the same ordinance they denied to the 
State governments the right to exercise authority over 
national subjects, or over any other, except within their 
own State limits.^ 

§ 98. Tlie people of the United States, in whom, as a 
nation, sovereignty inheres, when they instituted the 
national government, and conferred upon it jurisdiction 
and authority over matters pertaining to the nation as 

■which shall be made in pursuance thereof, and all treaties made orwhich shall 
be made under the authority of tlie United States, shall be the supreme law of 
the land, nnd the judges in every State shall be bound thereby, anything in 
tlie Constitution or laws of any State to the contrary notwithstanding.' If it 
is tlie supreme law, how can the people of any State, either by any form of its 
own Constitution or laws, or other jji-oceedings, repeal, or abrogate, or suspend 
it?" Jde?M,iJ354. 

" But, if the language of the Constitution were less explicit and irresistible, 
no otlier inference could be correctly deduced from a view of tlie nature and 
objects of the instrument. The design is to establish a form of government. 
Tliis, of itself, imports legal obligation, permanence, and uncontrollability by 
any but the authorities authorized to alter or abolish it. The object was to 
secure tlie blessings of liberty to the people and their posterity. The avowed 
intention was to supersede the old Confedei'ation, and substitute in its place a 
new form of government." Idem, § 3.55. 

In the several conventions of delegates chosen by the people of the several 
States to ratify or reject this Constitution, it was the understanding of all par- 
ties, that it was not a confederation ot the States, but a rjovernrnent of individuals, 
that was to be instituted by the nation if the Constitution was ratified. The 
opponents, on many occasions, pressed the objection, that it was a consolidated 
government; and contrasted it witli the Confederation. The advocates did 
not deny that its design was to establisli a national government, as contra- 
distinguished from a mere league, or treaty, or confederation. Story on Const., 
§§ 356 to 360, and notes. 3 Ell. Deb., 22, 27, 28. 

1 See chapter on the Constitution of the United States, post p. 65, ? 124. 

2 In Gibbons v. Ogden (9 Wheat. Rep., 187), the Supreme Court of the United 
States held this language: "As preliminary to the very able discussion of the 
Constitution which we have had from the bar, and as having some influence 
on its Constitution, reference has been made to the political situation of those 
States, anterior tcj its formation. It has been said that they were sovereign, 
were completely independent, and were connected with each other only by iX 
league. This is true. But when these allied sovereigns converted their league 
into a GOVERNMENT, when they converted their congress of embassadors, deputed 
to deliberate on their common concerns, and to recommend measures of gen- 
eral utility, into a legislature, empowered to enact laws on the most inter- 
esting subjects, the whole character in which the States appear, underwent a 
change, the extent of which, must be determined by a fair construction of the 
instrument by which the change was effected." 

3 Art. 1, § 10, of the Constitution of the United States provides as follows: 
"No State shall enter into any treaty, alliance, or confederation; grant letters 
of marque and reprisal; coin money; emit bills of credit; make anything but 
gold and silver coin a tender in payment of debts ; pass any bill of attainder, 
ex post facto law, or impairing the obligation of contracts, or grant any title of 
nobility." 

" No State shall, without the consent of the Congress, lay any imposts or 
duties on imports or exports except what may be absolutely necessary for 
executing its inspection laws; and the net produce of all duties and imposts, 
laid by any State on imports or exports, shall be for the use of the treasury of 
the United States; and all such laws shall be subject to the revision and con- 
trol of Congress. No State sliall, without the consent of Congress, lay any 
duty of tonnage; keep troops, or ships of war, in time of peace, enter into any 
agreement or compact with another State, or with a foreign power, or engage 
in war, unless actually invaded, or in such imminent danger as will not admit 
of delay." (See post — chapter on State Governments p. 298, g 477.) 
8 



58 GOVERNMENT. 

sncli, ordaiued tliat the residue of fi^overn mental 
authority aud power siiould be exercised by the ix^ople 
of the several States, through the agency of State gov- 
emiiients; which residue of autliority had respect only 
to matters local aud domestic, and was to be exercised 
witliiu the limits of the State, and iu such a manner as 
not to interfere with tlie jurisdiction of the national gov- 
ernment, or to trench upon the rights of national citizens 
as such.^ 

g 99. The authority which instituted the national 
government was sovereign to determine what subjects 
should be committed to the jurisdiction of tlie general 
government, and what should remain under State juris- 
diction. Heiice, whatever of authority renuiins with 
the citizens of the States to be exercised by the State 
governments, remains by the will of the nation ; aud is 
still subject to national control.^ 



CHAPTEE III. 

OF THE GOVERNMENT OP THE UNITED STATES. 

§ too. The government of the United States is a body 
corporate and politic, created b}^ the peoi)le of the nation 
to be intrusted with the exercise of their authority over 
matters committed by them to its jurisdiction. It con- 
sists of othces to which are attached rights, duties and 
powers to be possessed and exercised by the respective 

1 " state legislatures, as politicnl bodies, however sovereign, are yet not sov- 
ei'eign over the people. So far as the people have given power to the general 
government, so far the grant is unquestionably good; and the government 
holds of the people, and not of the State governments. We tare all agents of 
the same supreme power — the people. The general government and the State 
governments derive their authority from the same source. Neitiier can, in 
relation to the other, be called primary, though one is definite and restricted, 
and the other general .and residuary. The national government possesses 
those powers whicli it can be shown the people have conferred on it, and no 
more. All the rest belongs to the State governments or to the people them- 
selves." Daniel Webster in United States Senate, Jan. 27, 1S30, in reply to 
Hayne on Foot's resolutions. 

2 When the people said, "we ordain and establish this Constitution for the 
United States of America," it was the voice of absolute sovereignty asserting 
its authority to ordain and establish government over all subjects pertaining 
to the general welfare, whether of a national or local character. It was the 
assertion of that sovereignty which is indivisible in its existenc';^, and which 
presides over every authorized jurisdiction, whether State or national. " It is 
a gross error to confound the exercise of sovereign powers, witli sovereignty 
itself; or the delegation of such powers, with the surrender of them. A sov- 
ereign may delegate his powers to be exercised by as many agents as he may 
think proper, under sucli conditions and with such limitations as he may- 
impose; but to sui'render any portion of his sovereignty to another is to anni- 
hilate the whole. Sovereignty is in its nature indivisible." Calhoun on the 
Force Bill in tlie United States Senate, Feb. 15, 1833. Gales & Seaton's Cong. 
Debates, vol. 9, pt. 1, p. 537. 

See also § 81 and note, ante. 



GOVERNMENT OF UNITED STATES. 59 

incuinl)ents, in the manuer and for the purposes ordained 
by tlie people. 

g 101. The rights i)ossessed, the duties enjoined, and 
the powers cont'ened, pertain to the othce, and not to the 
indiviihiai incumbent. They are the same, whether 
the othce be tilled with good or bad men ; wise or weak 
ones. They continue whether the incumbent continues 
or not. Like the king or state, they never die. They 
were created for the good of the state ; and the benetits 
resulting from a i)roper administration of them, are 
secured to all alike. 

g 102. Since tlie rights, duties and powers conferred 
and enjoined upon an incumbent of a governmental othce 
belong to the office, and not to the incumbent, they are 
to be {possessed and exercised, as a trust for the benefit 
of the people ; and an officer who has been intrusted 
with these rights and i)0\vers, if he exercise or employ 
them for any other purpose, is guilty of a breach of 
trust, and unworthy to be continued as an officer of the 
government. 

S 103. The rights and powers conferred as an incident 
of office, being in the strictest sense a trust, created for 
the benefit of the people, it becomes the duty of those 
charged with the administration of government to see 
to it, that the trust be faithfully executed in the manner 
and for the i)urposes prescribed in the grant. And the 
trust being conferred for the benefit of the people, mal- 
administration in office is, consequently, a crime against 
the people, and should be punished accoi'dingly. 

g 104. The national government having been instituted 
for the purpose of defending all, and promoting the gen- 
eral welfare of the nation, must be supreme within the 
sphere of its jurisdiction ; that is, in the exercise of 
the authority and power of the nation for national 
])urposes, so far as the same has been expressly or 
imjdiedly committed to its jurisdiction.^ 

g 105. The duties, rights and powers to be observed, 
possessed and exercised by those charged with the 
administration of government, must correspond with 
those necessary requirements of society which make 
government a necessity as a means for providing for the 

I It is to be remembered that the government is intrusted with the exercise 
of supreme authority over such matters only as have been committed to its 
jurisdiction by tlie people. These are spec'iflcd in the constitution of the 
United States ; and the purposes for which they are given are also specified. 
In respect to other subjects and powers, essential to the government of the 
people, tliose which have not been intrusted to the states as local governments, 
yet remain witli the people. 



60 GOVERNMENT. 

common defense, and promoting the general welfare. 
Therefore, the national constitution made provision for 
the exercise of rights, offices and powers, essential for 
jnaintaining and defending the rights of the people as a 
nation, both externally and internally ; that is, for inter- 
national and for police purposes. 

g 10(). There necessarily exists as incident to a sovereign 
and independent nation, an internal sovereignty, inhe- 
rent in the ijeople of the nation, and, which is, to a 
limited extent, vested in the gov^ernraent instituted by 
them.^ This internal sovereignty in its exercise has 
respect to the rights, duties and welfare of the indi- 
vidual members of the society or nation, and is repre- 
sented by what is called the police imwer^ police riglits 
and police duties of the state or nation.^ 

g 107. As a like incident of nationality, there must also 
exist an external sovereignty which has its basis in the 
natural and necessary independence of nations. This 
external sovereignty is accorded to the nation by its 
recognition as a nation. Intercourse between the nations 
is regulated and maintained by the exercise of this 
branch of national authority. N"ational rights and duties 
in peace and in war, are asserted and vindicated in 
virtue of this external sovereignty. The laws by which 
this kind of sovereignty governs, and is known, are 
denominated interxatioxal, or the laws op nations.^ 

1 Sovereignty ever inheres in the people ; and they never part with it. Tliore- 
fore, it is never strictly correct to say that tlie government per se, is invested 
Avitli sovereignty or sovereign authority. Tlie people remain sovereign 
whetlier they institute a government or not; sovereign at all times to create, 
to amend, to annul, or to destroy wliat they have created. Sovereignty, as an 
essential attribute of nationality, can employ as many agents to execute its 
authoi'ity as it deems proper, and ' can appoint to them tlie limits of their 
respective jurisdictions and powers. But liice otlier agents, or agents for other 
purposes, tiiey can only exercise tlie authority of tlieir principal; tliey cannot 
possess it as their own ; and if tliey attempt to do so, their acts are void. 
Hence, whenevever we speak of granting authority, granting power, &c., let it 
be understood, that the grant extends only to the right to exercise the author- 
ity and power in the manner and for tlie purpose prescribed. 

s The authority of the people is absolute over all matters xiertaining to 
internal adnainistration. Tliat is, tliere is no other autliority to call in ques- 
tion wliat they ordain or establish for the government of themselves as 
individual members of the nation. " A nation is mistress of her own actions 
so long as tliey do not aflfect the proper and perfect rights of any other nation ; 
so long as sheis only internally bound, and does not lie under any external and 
perfect obligations. If slie makes a wrongful use of her liberty, she is guilty 
of a bi'each of duty; but other nations are bound to acquiesce in her conduct, 
since they have no right to dictate to her." (Vattel, g 20.) 

3 " Internal sovereignty is that which is inherent in the people of any state, or 
vested in its ruler by its municipal constitution or fundamental laws. Tliis is 
the object of wliat has been called internal public law, droit public interne, but 
which may more properly be termed constitutional law. External sovereignty 
consists in the independence of one political society, in respect to all other 
political societies. It is by the exercise of this branch of sovereignty that the 
international relations of one political society are maintained in peace and 
war, with all other political societies. The law by which it is regulated, has, 
therefore, been called external public law, droit public externe, but may more 
properly be termed international law." Lawrence Wheaion, pt. 1, cli. 2, g 5. 



OF THE UNITED STATES. 61 

g 108. In respect to subjects of internal administra- 
tion, there are naturally three departments of govern- 
ment, each of which is necessarily supreme in the exercise 
of its duties and powers. And as national authority 
extends over every part of the national domain, and is 
binding upon each and every individual inhabitant 
thereof, it follows, that the government, in the exercise 
of the authority of each of these departments, extends 
over all the territory, and embraces all the inhabitants 
of the United States, unless specially excepted there- 
from in the constitution. 

g 109. To be sovereign in the exercise of the authority 
of the nation for national purposes, the government 
must be intrusted with the exercise of supreme authority 
in each and every department. It must have sovereign 
authority to enact all laws necessary for the government 
of the societj^ composing the nation. It must have 
supreme authority to interpret and apply those laws to 
every individual and subject within its jurisdiction. It 
must have absolute authority to execute the final judg- 
ments and decrees rendered by its authority. That is, 
the government must have a supreme legislative, judicial 
and executive department, representing the sovereignty 
of the nation in whatever it enacts, adjudges, 

DECREES AND EXECUTES. 

g 110. To be sovereign in its legislative authority, it 
must be authorized to prescribe the laws by which society 
is to be governed in respect to matters committed to 
it; and there must exist within its jurisdiction no other 
authority to enact to the contrary, or repeal the laws it 
has enacted.^ 

§ 111. To be sovereign in its judicial department, there 
must exist no other or higher tribunal to which appeal 
can be taken, to review its final judgments or decrees. 
A sovereign judiciary must possess the right of final 
interj)retation and decision in applying the law. Its 

1 The legislature is an office of government created and endowed by the 
constitution. Tlie department of legislation continues independent of the con- 
tinuance of any particular set of incumbents. A person elected to the office 
of legislator, on taking tlie oath of office to discharge the proposed trust faitli- 
fully, according to the terms, and for tlie purposes prescribed in the constitu- 
tion, becomes invested with rights, duties and powers incident as a trust of 
that office. If, therefore, after having been selected by the people for that 
office, and having, upon oath of fidelity, assumed its duties and trusts, to be 
used only for the good of society, the legislator abuse the trust, and become 
guilty of malfeasance, he commits a crime against society, deserving punish- 
ment, commensurate with the crime committed — which is little less than 
treason, combined with moral perjury. 



62 



GOVERNMENT. 



judgments or decrees must stand, unless the same 
authority suspend or reverse them.^ 

§ 112. To be sovereign in its executive department, 
there must exist no other authority to stay the execu- 
tion of its judgments and decrees. The authority by 
whicli a judgment or decree of the court can be stayed 
in its execution, must be such as can vacate or reopen 
the same for further consideration and adjudication ; or 
such as is authorized to reprieve or pardon the offender. 
. S 113. By the constitution of the United States a 
supreme legislative, judicial and executive department 
of tlie government are created, each distinct from, and 
independent of the other ; and each intrusted with the 
exercise of sovereign authority within the sphere of its 
prescribed duties and powers.^ 

1 "The people erected this government. They gave it a constitution; and in 
that constitution they liave enumerated tlie powers wliicli tliey bestow on it. 
They liave made it a limited government. They have defined its authority. 
The.y have restrained it to the exercise of such powers as are granted ; and all 
others tliey declare are reserved to the states or to the people. But they have 
not stopped here. If they had, they would have accomplislred but half their 
work. No definition can be so clear as to avoid possibility of doubt; no limit- 
ation so precise, as to exclude all uncertainty. Who then shall construe this 
grant of tlie people? Who shall interpret their will, where it may be sup- 
posed they have left it doubtful ? With whom do tliey repose this ultimate 
right of deciding on the powers of government ? They have settled all this in 
the fullest manner. They have left it with the government itself in its appro- 
priate branch. The very chief end, the design for which the whole constitution 
was formed and adopted, was to establish a government that should not bo 
obliged to act through state agency, or depend on state opinion, or state dis- 
cretion. The people have wisely provided in the constitution itself a proper, 
suitable mode and tribunal for settling questions of constitutional law. There 
are in the constitution grants of power to congress, and restrictions of these 
powers. There are, also, prohibitions on the states. Some authority must, 
therefore, exist having the ultimate jurisdiction to fix and ascertain the inter- 
pretation of these grants, restrictions and prohibitions. The constitution has 
itself pointed out, ordained and established that authority. How has it accom- 
plished this great and essential end? By declaring that 'the constitution, 
and the laws of the United States made in pursuance thereof, shall be the 
supreme law of the land, anything in the constitution or laws of any state to 
the contrary notwithstanding.' " 

" This was the first great step. By this the supremacy of the constitution 
and laws of the United States is declared. The people so will it. No state law 
Is to be valid which comes in conflict with the constitution or any law of the 
United States. But who shall decide this question of interference ? To whom 
lies the last appeal ? Tliis the constitution itself decides also, by declaring 
' that the judicial power shall extend to all cases arising under the constitution 
and laws of the United States.' These two provisions cover the whole ground. 
They are in truth the key-stone of the arch. With these, it is a constitu- 
tion ; WITHOUT THEjr, IT IS A CONFEDERACY. In pursuaucc of these clear and 
express pi'ovisions, congress established at its very first session, in the judicial 
ACT, a mode for carrying them into full eflfect, and for bringing all questions 
of constitutional power to the final decision of the supreme court. It then 
became a government. It then had the means of self-protection, and, but for 
this, it would, in all probability, have been among things which are past." 
Wubsler in U. S. Senate, Jan. 27, 1830, in reply to Mr. Hayne on Footers resolution. 
Cong. Deb., vol. 6, pt. 1, pp. 77, 78. See also opinion of Chief Justice Marshall 
in Cohens v. Virginia (6 Wheat. Rep., 261, pp. 376, 377) ; Story on the Constitu- 
tion, I'i 373, 396, inclusive, and notes. 

2 By the constitution, all legislative authority therein granted is to be exer- 
cised by the Congress. Thus, Art. 1, Sec. 1: "AH legislative powers herein 
granted shall be vested in a Congress of the United States, which shall consist 
of a Senate and House of Representatives:" and the constitution proceeds to 
institute the corporate Congress by prescribing its construction, duties and 
powers. 

By Art. 2, it commits the executive power to the President of the United 
States, prescribing his office, with its duties and powers, and the mode by 
which a person shall be selected to assume the exercise thereof. It says : " The 
executive power shall be vested in a President of the United States," &c. 



OF THE UNITED STATES. 63 

§ 114. The legislative, executive and judicial depart- 
ments of the o-overnment thus created l)y tlie constitu- 
tion of the United States, each act by the same sui)i'eme 
and sovereign authority, whether enacting, adjudging, 
or executing the laws of the nation : to wit, the authority 
of the government and nation. 

g 115. Each department of the government, though 
distinct and independent of the others in its offices, 
duties and powers, in the exercise of its constitutional 
functions, represents the entire authority of the govern- 
ment as derived from the nation, and not the authority 
of that particular department alone.^ 

§ IIG. In the administration of the general govern- 
ment, each department is limited to its peculiar sphere 
of duties and powers, as enjoined and conferred by the 
constitution of the United States. Thus, Congress, as 
the legislative department, is limited to the act of legis- 
lation ; the courts are limited to the sphere of adjudica- 
tion ; and the executive to that of executing the laws 
as applied by the order, judgment or decree of the 
courts. Bat in the discharge of their various duties, 
and in the exercise of their respective powers, each 
dojiartment acts by the authority of the government 
and people, and hence, it acts by sui)reme and sovereign 
authority. 

§ 117. The sphere of legislation is distinct both from 
the sphere of adjudication and execution. Congress 
can enact any constitutional law and make it binding 
upon the people individually. But it has no authority 
to interi)ret, construe or api)ly the law enacted. It 
cannot judicial!}" determine tljat there has been an 
infraction of the law by one upon whom it was obliga- 
tory. That power can only be exercised by the judiciary. 

§ 118. The sphere of adjudication is limited to the 
ascertainment of the law, and to its application to 
the facts judicially ascertained ; to the end that the 

Tlie constitution also creates the judicial department. Thus: "The judicial 
power of the United States shall be vested in one supreme court, and in such 
inferior courts as Congress may from time to time ordain and establish." (Art. 
3, g 1.) 

1 Thus, the government can only legislate through Congress ; but the laws 
enacted by Congress, if constitutional, express the autliority of tlie govern- 
ment and nation. Only the judiciary department can interpret and apply 
those laws; yet their interpretation and adjudication is final, and expresses 
the judgment of the government and nation. So the executive has the sole 
right to execute the adjudicated will of the nation, as interpreted and applied 
by the national judiciary; but in doing so, he represents both the government 
and nation, and acts by all the authority the nation could confer in that re- 
spect. Sovereignty is not divided between the several departments of the 
government; on the contrary, it is exercised by the government through 
tlie .several departments thereof. 



64 GOVERNMENT. 

proper remedies may be applied by the appropriate 
judgment, order or decree of the court. But tliis 
department can only interpret and apply the law as it 
exists. It can enact nothing to supply the deficiency 
of legislation. And when it has pronounced its final 
judgment or decree, its authority over the subject is at 
an end. What remains to be done then passes into the 
hands of the executive. 

§ 119. It is the duty of the executive department as 
such, to see that the law as ascertained and applied by 
the final order, decree or judgment of the court, is 
executed in accordance with such order, judgment, or 
decree. By the constitution of the United States it is 
made the duty of the President, as the executive head 
of the nation, to take care that the laws are faithfully 
executed. (Art. 2, % 3.) 

% 120. There are other duties and powers necessarily 
incident to a national government which arise out of 
the external relations sustained by it to other nations. 
These duties and powers are international in character ; 
and may be imposed or conferred on such departments as 
the people in their sovereignty ordain. By the national 
constitution, the President, by and with the advice and 
consent of the senate, has power to make treaties, to 
nominate, and by the like advice and consent, to appoint 
embassadors and other public ministers and consuls. 
He is also made the commander-in-chief of the army 
and navy of the United States, &c. (Art. 2, g 2.) 

(5 121.' There are also other duties and powers per- 
taining to administration, which may be enjoined and 
conferred on either of the several departments, as shall 
seem most appropriate. By the constitution the Presi- 
dent may nominate, and by and with the advice and 
consent of the senate, appoint judges of the supreme 
court, and all other officers not otherwise provided for 
by the constitution. He has power to fill vacancies 
which occur during the recess of the senate, by grant- 
ing commissions which are to expire at the end of their 
next session. The constitution requires him to give to 
the Congress information of the state of the Union, and 
to recommend to their consideration such measures as 
he judges to be necessary and expedient, &c. These 
may be denominated presidential duties and poivers, &c} 

1 These are denominated presidential duties and powers, because they pertain 
to tlie office of president, not as a part of the executive duties of that office, 
bnt because they are specifically attached to it by the terms of the constitution. 



PRINCIPLES OF INTERPRETATIOISr, 65 

S 122. The government of the United States, as 
instituted by the people in the adoption of the national 
constitution, is a national government ; having 
supreme antliority to legislate in respect to all matteil 
pertaining to the permanence, security and prosperity 
of the nation ; having supreme authority to determine 
the limits of its own jurisdictions and powers under the 
constitution and laws of the United States ; and having 
supreme authority to carry into effect its own final judg- 
ments aiid decrees, anything in state constitutions and 
laws to the contrary notwithstanding. 

S 123. To this government of the United States is 
committed not only all the authority and power to be 
exercised in the administration of a supreme national 
government over the people composing the nation, but 
also the exercise of all national authority essential or 
necessary to the preservation of the sovereignty and 
independence of the nation among the nations of the 
earth ; the constitution having clothed the government 
with ample powers to adjust and maintain international 



relations and rights.^ 



CHAPTER lY. 

OF THE CONSTITUTION OF THE UNITED STATES. 

PRINCIPLKS OF INTERPRETATION. 

S 124. The government of the United States is a 
constitutional government, deriving its existence and 
authority from the people. It is intrusted with the 
exercise of those powers which are expressly or impli- 
edly granted in the constitution, and with no other. 
Hence it is a limited government; limited by the terms 
of the grant. Therefore, the powers of the national 
government are to be determined by ascertaining the 
meaning of the several provisions of the constitution, 
and their api^lication to the subjects intended by the 
people. 

S 125. The meaning of the constitution, and its appli- 
cation to the subjects intended, must be ascertained by 
the application of such rules of interpretation as were 

_ 1 {8ee as to powers conferred upon congress, section eight, article one, of the constiiti- 
lion of the U. S. ; as to the treaty making power, see art. 2, 2 2; also as to the amoini- 
ment of embassadors. Idem.) 

9 



66 GOVERNMENT. 

understood and recognized as just and valid, at tLe time 
the constitutioQ was framed and adopted. Therefore, 
in construing the constitution for the purpose of ascer- 
taining the powers and duties of the national govern- 
ment, it becomes necessary first, to consider the rules by 
which its true meaning and application are to be ascer- 
tained and determined.^ 

§ 126. Construction and interpretation imply uncer- 
tainty, ambiguity. Therefore one of the first maxims 
in respect to interpretation is, that it is not allowable 
where there is no uncertainty as to the meaning of the 
language used. That no one shall interpret where 
interpretation is not needed. " When the deed is worded 
in clear and precise terms, when its meaning is evident 
and leads to no absurd conclusions, there can be no 
reason for refusing to admit the meaning which such 
deed naturally presents."^ 

g 127. In construing the constitution the end sought 
is, to ascertain the intention of the people, as expressed 
in the various provisions of that instrument. But that 
intention is ijresumed to be expressed in language 
appropriate for the purpose ; therefore the natural and 
ordinary meaning of the language used, should control, 
unless a different meaning is inferable by comparing the 
provision with other parts of the instrument, or with 
what was the apparent intention of the people in that 
respect.^ 

g 128. It is a fundamental rule in the interpretation 

1 As a principle to be observed in the construction of treaties, or any other 
deed, Vattel says, (i 268), " the question Is to discover wliat the contracting 
parties liave agreed upon — to determine precisely, on any particular occasion, 
what has been promised and accepted : that is to say, not only what one of the 
parties intended to promise, but also what the other must reasonably and can- 
didly have supposed to be promised to liim, what has been sufficiently declared 
to him, and what must have influenced him in his acceptance. Every deed, 
therefore, and every treaty, must be interpreted by certain fixed rules, calcu- 
lated to deternaine its meaning as naturally understood by the parties 
concerned at the time when the deed was drawn up and accepted." 

2 (Vattel, § 263.) " Where a law is plain and unambiguous, whether expreSE?ed 
in general or limited terms, there is no room left for construction." {Bartlet v. 
Morris, 9 Port., 260.) (See also 1 Bl. Com., p. 60, and Sharswood's note.) 

" Words are the common signs that mankind make use of to declare their 
intention to one another, and when the words of a man express his meaning, 
plainly, distinctly and perfectly, we have no occasion to have recovirse to any 
other means of interpretation." Rutherforth's Inst., B. 2, eh. 7, g 2. 

3 The construction or interpretation of a law consists in ascertaining the 
meaning or intention of the legislator as expressed therein, either from his 
words or from other conjecture, or both. Hence, interpretation is literal, 
rational, or mixed. It is literal when his meaning or intention is gathered 
from the words only, requiring reference to no other parts or subjects. It is 
rational when his words do not express perfectly his intention, and it becomes 
necessary to collect it from probable or rational conjectures only. It is mixed 
when the words, if rightly understood, would express the intention, but being 
themselves of doubtful meaning, it becomes necessary to have recourse to 
probable or rational conjecture to ascertain in what sense they were used. 
(Ruth. Inst., B. 2, ch. 7, i 3.) 



PRINCIPLES OF INTERPRETATION". 67 

of instruments to construe tlieni according to the 
natural meaning- of the terms, and tbe intention of 
the parties. The intention of a law is to be gathered 
from the words, the context, the subject matter, the 
effects and consequences, and the reason and spirit of 
the law.^ 

g 129. While it is a fundamental rule in the interpret- 
ation of instruments to construe them according to the 
natural meaning of the words used, and the intention 
of the parties, this can be done only when such inten- 
tion is expressed in language, which, both in words and 
construction, "is agreeable to common use, without 
atttending to etymological fancies or grammatical 
refinements."^ 

% 130. Where a literal interpretation leaves the inten- 
tion of the party or legislator obscure or doubtful, 
recourse must be had to construction, or rational inter- 
I)retation ; by which is meant, other signs of intention 
must be sought after, by referring to the context ; or 
the subject matter; or the effects and consequences; 
or the reason and spirit of the instrument or law.^ 

1 1 BI. Com., 59, CO: Story on Const., ? 400. 

Says Blackstone, ^1 Com., p. 59.") " The fairest and most rational method to 
interpret the will of the legislator is by exploring his intentions at the time 
when the law was made, by signs the most natural and probable. And these 
signs are either tlie words, tlie context, the subject matter, the effect and con- 
sequences, or the spirit and reason of tlie law." 1. Words are generally under- 
stood in their usual and most known signification. * * Terms of art or 
technical terms, must be taken according to the acceptation of the learned in 
eacli art, trade and science." 2. " If words happen to be still dubious, we may 
establish their meaning from the context, with wliich it may be of singular 
use to compare a word or a sentence whenever they are ambiguous, equivocal 
or intricate;" as calling in tlie preamble to help construe tlie act; or a com- 
parison of the act with other laws made by the same legislator, having some 
aflinity with tlie subject, or that expressly relate to the same point; as statutes 
in pari materia must be construed witli reference to each other. (See Shars- 
wood's Blackstone, 1 Vol. p. 60 and notes.) 3. Words are always to be under- 
stood as having regard to the subject matter; for that is always supposed to be 
in tlie eye of the legislator, and all his expressions directed to that end. 4. As 
to the eflect and consequences, tlie rule is, if the words bear eitlier none, or a 
very absurd signification when literally understood, we must deviate a little 
from the rc<;eived sense. 5. But the most effectual way of discovering the true 
meaning of a law when the words are dubious, is by considering tlie reason 
and spii-it of it, or the cause wliich moved the legislator to enact it. For when 
the reason of the law ceases, the law itself ought likewise to cease. (See 1 Bl. 
Com., p. 00,61; 3 Maule & Selwyn, .510; Wilkinson v. Lelan.d, 2 Peters, 661; The 
Emily & Caroline, 9 Wheat., 388; (see also Sharswood's note, 1 Bl. Com., p. 60.) 

a Ruth. Inst., B. 2, ch. 7, ? 4. " If the words and the construction of a writing 
are clear and precise, we scarce call it interpretation to collect tlie intention 
of the writer from them. But the definition of interpretation will best inform 
us whether it is to be called by this name or not. Interpretation consists in 
collecting tlie intention of a man from the outward signs that he makes use 
of to declare liis intention ; it must tlierefore certainly be one brancli of inter- 
pretation to collect his intention from his clear and precise words, as they lie 
before us." * * "The principal rule to be observed in literal interpretation, 
is to follow that sense in respect both of the words and of the construction, 
wliich is agreeable to common use, without attending to etymological fancies, 
or grammatical refinements." Idem. 

3 Bl. Com., p. 59, and notes. 

The construction of a law or instrument, implies the exercise of the rational 
faculties in exploring tlie intention of the maker through an examination of 
signs and indications so connected with the instrument construed, as to make 



68 GOVERNMENT. 

g 131. When construction or rational interpretation 
is required, all doubtful words or expressious are to be 
taken in such a seuse as will make them produce some 
effect, which is reasonable, and consistent with the 
general intention of the law-maker as expressed or 
necessarily implied in the law which is being construed.^ 

g 132. In the construction or rational interpretation 
of words or expressions of doubtful meaning in a law, 
sucli an interpretation must be given to them as will be 
consistent with the spirit and reason thereof : that is, 
with the end which the law-maker had in view. Eor 
since the reason of a law consists in the end sought to 
be obtained by the law-maker, or the eiFect intended 
to be produced, such meaning should be given to doubt- 
ful words, if possible, as would tend to produce such 
result.^ 

S.133. There are numerous circumstances attending 
a law which may help to ascertain the meaning of 
ambiguous words or expressions used by the legislator. 
But these circumstances by which to explain doubtful 
writings, laws, &c., must be shown to have immediate 
connection with the writing or law to be interpreted 
thereby.^ 

it clear that the same or a similar intention pervaded the whole. If it be a 
contract that requires construction, we must ascertain as far as possible the 
common intention of the parties ; as well the understanding of him who 
accepts, as of him who made the instrument; for it was their common under- 
standing and assent tliat made the agreement. 

1 (Rutherforth's Institutes, B. 2, ch. 7, § 8. Grot., B. 2. ch. 16, § C.) " All doubt- 
ful words or expressions are to be taken in such a sense as will make them 
produce some effect ; that is, they are to be so construed as to give them some 
meaning, for to take them in any sense that will make them produce no mean- 
ing is in reality to give them no meaning at all." 

" Ambiguous words or expressions are sometimes capable of two senses, and 
will produce some effect in either of the two. The rule then goes further, 
and says, that the effect must be a reasonable one. No otiier effect can be 
supposed to have been in the speaker's or writer's intention, because no man 
can be supposed to intend what is absurd or unreasonable." (Ruth. Inst., 
supra.) 

" All civil laws * * are to be so construed where the words are of doubtful 
meaning, as to make them produce no other elfect but what is consistent with 
reason, or with the law of nature. And when men live in a state of civil 
society, all doubtful words in any of their contracts with one another, are to 
be construed in that sense which will produce an effect consistent with the 
civil laws of the society to which they belong." Idem. 

2 " It may be laid down that the intention of the makers of a statute is to 
govern, even though the construction grounded upon such intention m&y 
appear to be contrary to the literal import of the words. Every technical 
rule as to the construction or form of particular terms, must yield to the clear 
expression of the paramount will of the legislature. Wilkinson v. Leland, 2 
Peters Rep., 661. In construing statutes, penal as well as others, an interpreta- 
tion must never be adopted which will defeat the evident purpose of the law, 
if it will admit of any other reasonable construction." (The Emily and Caro- 
line, 9 Wheat. 388. Sharswood's note, 1 Bl. Com., p. 60.) 

3 " Grotius divided these circumstances into two sorts, such as are connected 
with the writing in origin only, and such as are connected with it in place as 
well as origin. To these two we may add a third; for there are some circum- 
stances which seem to be connected with a law or contract, &c., rather in time 
than either in origin or place." Ruth. Inst., B. 2 ch. 7, § 9. 



PRINCIPLES OF INTERPRETATION. 69 

§ 134. Contemporary practice, contemporary inter- 
pretation, and contemporary history are circumstances 
to which reference may be had to aid in the interpreta- 
tion of ambiguous words and expressions in the grants 
of rights, duties and powers. But contemporary history, 
IH'actice and interpretation must be resorted to for such 
purpose, " with much quahficatiou and reserve."^ 

S 135. The construction to be given to instruments 
may be strict or large, close or literal. Common usage 
has given two senses to the same word, one of which is 
more confined by including fewer i)articu]ars ; this is 
denominated its strict sense; the other is more com- 
prehensive, or includes more particulars; and this is 
called its large sense. If the word is taken in its con- 
fined sense, the interpretation is strict; if in its enlarged 
one, the interpretation is large. By the same usage, 
strict and large interpretation may be opposed to each 
other ; as sometimes the meaning of the language used 
is to be restrained so as to take in less than the words 
express ; sometimes the meaning is to be enlarged so as 
to take in more. In the former use it is called close 
interpretation ; in the latter it is denominated liberal or 
free.^ 



I A circumstance of origin occurs where tlie same lawgiver lias previously or 
subsequently enacted on the same or a similar subject. It is a circumstance 
of origin Ijecause both had tlie same origin, and were connected with each 
otlier by coming from the same person. 

A circumstance of origin and place together, occurs when interpretation Is 
sought by the help of some other clause or part of the same instrument, which 
is connected with the clause to be explained in place as well as origin. 

Contemporary practice is a circumstance which is connected with a law in 
time. See Ruth. Inst., supra. 

" In examining tlie constitution, the antecedent situation of the country, 
and its institutions, the existence and operation of the State governments, the 
powers and operations of tlie confederation, in short all the circumstances 
whicli had a tendency to produce or to obstruct its formation and ratification, 
deserve careful attention. Much also may be gathered from contemporary 
history and contemporary interpretation, to aid us in just conclusions." 
Story on Const., ? 404. See also Stuort v. Laird, 2 Cranch., 299, 309: Martin v. 
Hunter, 1 Wheat. Rep., 304; Cohen v. Virninia, 6 Wheat. R., 264, 418, 421. But see 
Chisholm v. Georgia, 2 Doll., 419; The Federalist No. 77. 

2 Story, Com. Const., § 406. 

" In the tirst place, the private interpretation of any particular man or body 
of men, must manifestly be open to much observation. The constitution was 
adopted by the people of the United States. It was submitted to the whole 
upon a just survey of its provisions as they stood in the text itself. In differ- 
ent States and in diflerent conventions, different and very opposite objections 
are known to liave prevailed, and might well be presumed to prevail. Oppo- 
site interpretations and different explanations of different provisions may 
well be presumed to have been presented, in different bodies, to remove, local 
objections, or win local favor. And there can be no certainty that the differ- 
ent State conventions in ratifj'ing tlie constitution gave the same uniform 
interpretation to its language, or that even in a single State convention, the 
same reasoning prevailed with a majority, much less with the whole of the sup- 
porters of it." Story Cora. Const., g 406. 
Ruth. Inst., B. 2, Ch. 7, i 10. 

" In order to extend the meaning of a writer beyond the precise or common 
sense of his words, we may argue from the reason or motive upon which 
he proceeded ; from the end which he had in view, or the purpose which he 
designed to obtain. When we thus argue from the reason of a law, and would 



70 



GOVERNMENT. 



g 136. When the people institute and establish a 
constitutional government, and enjoin npon it duties, 
secure to it rights, and confer on it powers to enable it to 
provide for the common defense, to promote the general 
welfare, and to secure to all the blessings of liberty, 
all grants of power and endowments of rights essential 
for such purposes, are to receive a large, liberal and free 
interpretation.^ 

§ 137. The people of the nation, in whom alone abso- 
lute sovereignty within the territorial limits of the 
United States is vested, in the institution of the national 
government, with its rights, duties and powers, exercised 
no au-thority in derogation of any existing legitimate 
authority, right or power ; either of individuals or States. 
And, for this reason, a strict or close interpretation of 
the grants of powers and rights to the national govern- 
ment, is not required.^ 

,§ 138. The powers given to the general government, 
belonged to the people and not to the State govern- 
ments. If any of them had been exercised by the State 
governments ijrior to the institution of the national 

extend the meaning to any case which is not included in its words, Grotius 
observes that the case must be shown to come within the same reason upon 
which the law-maker proceeded. If it only comes within the like reason this 
will be no evidence that it is included in his meaning. * * It must be agree- 
ably to the same reason upon which he proceeded." (Ruth. Inst., B. 2, Ch. 7, § 
11; also Grot. B. 2. Ch. 16, ? 20.) "But every writing, and every clause in a 
writing, whether it is a law or a contract, or a will, though it is not to be con- 
strued agreeably to the reason upon which the writer might have proceeded, is 
certainly to be construed agreeably to the reason upon which he did proceed. 
When we know what was the reason or final cause which the writer had in 
view, what end he proposed, or what effect he designed to produce, and the 
m.eaning of the law, or contract, or will, if we were to adhere closely to the 
words of it, would not come up to this reason, or would not produce this efTect, 
we may then conclude that his words express his meaning imperfectly ; and 
that his meaning is to be extended beyond his words, so as to come up to this 
reason, or so as to produce this effect. For it is much raore probal^le that the 
writer should fail in expressing his meaning, than that his meaning should 
fall short of the purpose he designed to obtain." Ruth. Inst., Idem. 

1 (Observe the language of the supreme court of the United States in Gibbons 
V. Ogden, 9 Wheat., 1 et seq.; also in Martin v. Hunter, 1 Wheat., 304; 8. C. 3 
Pet. Cond. R. 575 ; Ogden v, /Saunders, 12 Wheat., 332.) 

" The constitution of the United States is to receive a reasonable interpreta- 
tion of its language and its powers, keeping in view the objects and purposes 
for which those powers were conferred. By a reasonable interijretation Ave 
mean, that in case the words are susceptible of two diffevent senses, the one 
strict and the other more enlarged, that should be adopted which is most con- 
sistent Avith the apparent objects and intent of the constitution; that which 
will give efHcacy and force as a government, rather than that which will 
impair its operation and reduce it to a state of imbecility." Story's Com. 
Const., 1 419. 

2 It is to be remem.bered that the people of the nation and the people of the 
States are the same. That the necessities for national and State governments 
are the same. That the authority by which they are instituted is the same. 
They are but different agents of the same principal — the people — intrusted 
with the several talents committed to their use. The national government is 
charged with the defense of the whole people as a nation, and with promoting 
their general welfare; while the State is charged with the exercise of such 
duties and powers as pertain to domestic matters, and to the local welfare of 
those residing within her limits. Both governments have the same end to 
accomplish — to wit, the enjoyment by all citizens of life, liberty, security and 
happiness, and the protection of all in such enjoyment. 



PRINCIPLES OF INTERPRETATION. 71 

government, tliey Lad been so used by the authority of 
the people who had authority to withdraw such powers 
at (Pleasure, and to confer them upon the national gov- 
ernment. 

§ 139. In construing the constitution of the United 
States, it is important to keep in mind that it is a funda- 
mental law, ordained and established by the people of 
the nation for the purpose of instituting a national 
government, to be invested with supreme authority and 
power to defend and maintain the rights and interests 
of the nation, against invasions from without, and insub- 
ordination from within ; and to do all things necessary 
to provide for the common defense, and to promote the 
general welfare of the nation. 

g 140. It is also to be kept in mind that the people in 
instituting the government of the United States by the 
establishment of this constitution, intended to commit 
their rights and interests as national citizens to the 
absolute protection of the government thus instituted; 
and to give to it supreme power and authoritj^ to aftbrd 
them that protection whenever and wherever it should 
be needed. 

^ 141. It is also important to remember that it pro- 
posed to institute a national government complete in all 
its parts, and dependent for its rights of administration 
only upon the authority committed to it, to be exercised 
upon all national subjects within its jurisdiction. That 
it proposed to invest this government with supreme 
authority to legislate, and to interpret, apply, adjudge 
and execute the laws enacted by it, independent of all 
other legislative, judicial or executive authority.^ 

1 The people erected this government. They gave it a constitution ; and in 
that constitution they enumerated tlie powers whicli they bestowed on it. 
They made it a limited government. They restrained it to the exercise of such 
powers as are granted, and all others, they declare, are reserved to the states 
or to tlie people. But * * no definition can be so clear as to avoid possibil- 
ity of doubt ; no limitation so precise as to exclude all uncertaintJ^ Who, 
tlien, shall.construe this grant of the people? * * * They have left it with 
tlie government itself, in its appropriate branches. The very chief end, the 
main design for which the wliole constitution was framed and adopted, was to 
establish a government tliat sliould not be obliged to act through state agency, 
or depend on state opinion or state discretion. The people had had quite 
enough of that kind of government under tlie confederacy. * * * The 
people have wisely provided in the constitution itself a suitable mode and 
tribunal for settling questions of constitutional law. There are in the consti- 
tution, grants of powers to congress, and restrictions on these powers. There 
are, also, prohibitions on the states. Some authority must, therefore, necessa- 
rily exist, having the ultimate jurisdiction to fix and ascertain the interpreta- 
tion of these grants, restrictions and prohibitions. The constitution has itself 
pointed out, ordained and established that authority * * by declaring that 
" the constitution and the laws of tlie United States, made in pursuance thereof, 
shall be the supreme law of the land, anything in the constitution and laws 
of any state to the contrary notwithstanding." By this the supremacy of the 
constitution and laws of the United States are declared. No state law is to be 
valid which comes into conflict with the constitution or any law of the United 



72 GOVERNMENT. 

§ 142. The powers granted by the people to the 
national government to be exercised in providing for 
their common defense, promoting their general welfare, 
and securing to them and their posterity the blessings 
of civil liberty, were granted that they might inure to 
the sole benefit of the grantors — the people — and are 
to be exercised only for their benefit ; therefore, such 
grants should receive a free, liberal and large construc- 
tion, so far as the powers granted are essential to 
securing such end.^ 

g 143. In construing the grants of power in the con- 
stitution, the power should be deemed coextensive with 
the terms of the grant ; unless from something which 
appears in the context, a plain restriction is intended. 
The mere possibility of abuse will not justify restricting 
the power to a particular case.^ 

g 144. As, in the construction of doubtful words or 
expressions in a law, such an interpretation must be 
given as will not defeat the end the law-maker had in 
view, so in respect to a given power, such an interpre- 
tation must not be given as will plainly defeat or impair 
its avowed object. Therefore, where the words of the 
grant are fairly susceptible of two interijretations accord- 
states. But who is to decide this question of interference ? Tliis tlie constitu- 
tion itself decides, also, by declaring "that the Judicial power shall extend to 
all cases arising under the constitution and laws of the United States. These 
two provisions cover the whole ground ; they are the key-stone of the arch." 
(Webster's reply to Hayne in U. S. Senate Jan. 27, 1830. G. & S. Cong. Deb., V. 6, 
pt. 1, pp. 77, 78.) 

1 " In regard to municipal charters or public grants, similar considerations 
usually apply. They are generally deemed restrictive of the royal or public 
prerogative, or of the conimon rights secured by the actual organization of the 
government, to other individuals or communities. They are supposed to be 
procured, not so much for public good as for private or local convenience. 
They are supposed to arise from personal solicitation, upon general sugges- 
tions, and not ex certa causa, or ex mero motu, of the king or government. 
Hence, such charters are often required bj"- the municipal jurisprudence to be 
construed strictly, because they yield something which is common for the 
benefit of a few." (Story's Com. Const., § 421.) 

" But a constitution of government founded by the people for themselves 
and their posterity, and for objects of the niost momentous nature, for perpet- 
ual union, for the establishment of justice, for the general welfare, and for a 
perpetuation of the blessings of liberty, necessarily requires that every inter- 
pretation of its powers should have a constant reference to these objects. No 
interpretation of the words in which those powers are granted, can be a sound 
one, which narrows down their ordinary iniport, so as to defeat those objects." 
Idem, § 422. 

Laws and acts which tend to public utility should receive the most liberal 
and benign interpretation to effect the object intended or declared, (1 Bl. 
Com., 89), so as to make the private 5aeld to the public interest, and in favor of 
public institutions, and all establishments of piety, charitv, education and 
public improvement. (11 Co., 70-78; Hob. 97, 122, 157; 1 Serg. 55; Dy. 255; 5 Co., 
14; 9 Cranch, 331; 3 Pet, 140, 481; 6 id., 436.) 

2 Every government, to be effective, rriust necessarily be intrusted with the 
exercise of some disci-etionary powers; as it is impossible to foresee what con- 
tingencies may arise in its administration, and to expressly provide for them. 
The means by which the administration is to discharge its trusts, under the 
ever changing conditions and relations of society, must be subject to perpetual 
modification. Therefore, confidence must be reposed in those charged with 
the administration of government, after providing the proper remedies ia 
cases of an abuse of the trust reposed in them. 



PRINCIPLES OF INTERPRETATION 73 

ing to their common use, the one of which will defeat, 
and the other preserve and promote the object intended, 
the latter should be adopted, according to the maxim, 
lit mac/is valeat, quam pereat.^ 

g 145. Upon a principle similar in spirit, it follows, 
that in the interpretation of a power granted to govern- 
ment, to be exercised for the benefit of the people alone, 
such grant of power carries with it the necessary means 
to execute it.^ 

§ 14G. The general and State governments as institu- 
tions of the people intrusted with the exercise of govern- 
mental authority, have jurisdiction over the same 
persons and territory, each possessing jjowers.in exclu- 
sion of the other in matters committed to their respec- 
tive jurisdictions. In the institution and endowment 
of these governments, it is the intention that the gene- 
ral government shall administer in respect to the needs 
and interest of a national character, and the State 
governments in respect to those of a local and domestic 
character. But as the State and national citizen have 
certain rights and necessities in common, it follows that 
some of the duties and powers of the general and State 
governments may be concurrent. 

§ 147. As the general and State governments are 
distinct from each other in their institution and admin- 
istration, it follows from necessity, that in respect to 
concurrent powers, they must be of such a nature that 
they can be possessed and exercised by the general and 
State governments without conflict, or the possession 
and exercise by the one must exclude the like posses- 
sion and exercise by the other. 

1 " Courts will look to the provisions of a law to discover its objects ; to meet 
its intention at the time it was made, which they will not suffer to be defeated. 
It will be sousht in the cause and necessity of making the law; the meaning 
thus extracted will be taken to be the law intended, as fully as if expressed in 
its letter; and a thing which is within the letter but not within the intention 
of the law-maker, is not within the statute. (1 Bl. Com., 60; 15 Johns. R., 380; 
14 Mass., 92; 5 Wheat., 9t; 12 id., 151; 6 Pet., 644.) When the whole context 
demonstrates a particular intent in the legislature to effect a certain object, 
some degree of .implication may be called in to effect it. (6 Cranch, 314; 1 Bl. 
Com., 60, 92.) The whole statute, and those on similar subjects, as the context 
will be taken in aid, according to the apparent meaning of their provisions. 
(1 Bl. Com., 60; 1 Pick., 154.) The history and situation of the country will be 
referred to to ascertain the reason and meaning of a provision, so as to enable 
a court to apply the rule of construction. (1 Wheat., 121; 4 Pet., 432) In doubt- 
ful cases the title and preamble will be resorted to to explain the law. (3 
Wheat., 631; 4 Serg. & R., 166.)" Judge Baldwiii's Constitutional Views, pp. 8, 9. 

s It must be obvious that the means of carrying into effect the objects of a 
power must be varied, in order to adapt themselves to the exigencies of the 
nation at different times. A mode efficacious and useful in one age, or under 
one posture of circumstances, may be wholly vain or even mischievous at 
another. Government presupposes the existence of perpetual mutability in 
its own operations on those who are its subjects; and a perpetual flexibility in, 
adapting itself to their wants, interests, habits, occupations and inflrmitiea 
(See Story Const., ? 430.) 

10 



74 GOVERNMENT. 

% 148. Inasmucli as tbe constitution of tlie United 
States, and the laws made in pursuance thereof, are the 
supreme law. it follows that the possession and exercise 
of a constitutional power by the general government, 
must necessarily exclude the possession and exercise of 
the same power by tlie State governments, in all cases 
where, in the exercise of such power, there is likely to 
arise an iccompatability or repugnancy in the adminis- 
tration of the two governments. 

g 149. Where the power given to the general govern- 
ment, to be effective and adequate to the purpose for 
which it was granted, must be exclusive in that govern- 
ment, it is to be implied that it is exclusive. This 
implication arises from the reason and spirit of the 
grant itself^ 

S 150. Where the power granted to the general gov- 
ernment is not, either in its nature or in the exercise 
thereof, incompatible with a concurrent power in the 
States, then, such power may be deemed to be possessed 
by both the general and State governments, until exer- 
cised by the general government in such a manner as to 
render its concurrency incompatible.^ 

.§ 151. Where the incompatibility and repugnancy 
which would result from the concurrence of the power 
in the general and State governments, arises from the 
character of the power itself, as applied to subjects 
peculiarly withiu the jurisdiction of the general gov- 
ernment, such power is to be deeuied exclusive in the 
general government, whether exercised by it or not. In 
such case the incompatibility being in the character of 
the power itself, it is no answer to say, that each party, 
in its exercise, might avoid interference with the other.^ 

g 152. Where the repugnancy or incompatibility does 
not pertain to the character of the power, but only to 
its exercise or operation, in such case the State govern- 
ments are restrained only to the extent of actual inter- 
ference. 

■ I story Com. Const., § 447. 

2 Story Com. Const., § 447. 

In such a case the concurrency of the power may be incompatible in its 
nature or general character, by being applied to objects which could control, 
defeat or destroy the powers of the general government, if permitted to be 
thus exercised by the States. The concurrency of the power may become 
incompatible in its exercise, when there arises a conflict in tlie actual laws and 
regulations made in pursuance of the power by the genei-al and State govern- 
ments. In the former case there is a qualification ingrafted upon the generality 
of the power, excluding its application to such objects and purposes as might 
Interfere with the power of the general government. In the latter case, there 
is a qualification only upon its exercise to the extent of actual confiict in the 
operations of each. Story Com. Const., ? 447. 

3 See Story Com. Const., ? 447. 



PRINCIPLES OF INTERPRETATION. 75 

^ 153. In the construction of the constitution of the 
Uuited States, it is not a universal rule of interpretation, 
that a specification of particular powers granted neces- 
sarily excludes others not specified. But in order to 
ascertain how far an affirmative or negative provision 
excludes or implies others, the nature of the provision, 
the subject matter, the objects, and the reason and 
si)irit thereof, must be examined, rememberiug that the 
instrument is a constitution of government ordained 
and established by the people for their own security 
and welfare; and that, by special provision, all powers 
necessary to carry into effect those expressly granted, 
are given by implication. 

S 154. It is a fundamental principle of public law, 
that nations are equal in respect to each other, and 
entitled to claim equal consideration for their rights, 
however much they may dift'er in numbers, strength, 
government, manners or religion. ^ Hence when the 
people of the United States instituted the general gov- 
ernment, as the sole means of maintaining a national 
existence, and providing for their common defense and 
promoting their general welfare as a nation, they must 
have intended to have conferred on the government 
every power essential for that purpose, as possessed and 
exercised by other nations. 

§ 155. If, then, the people of the nation by ordaining 
and establishing the constitution of the United States, 
instituted a national government, and clothed it with 
authority and powers to enable it to execute the trusts 
committed to it, that instrument should confer by 
express grant or by necessary implication, all the 
authority and powers essential to a complete and per- 
fect administration of such government, to the end that 
the existence, security and welfjxre of the nation mighb 
be provided for in the most perfect manner. 

g 156. The constitution of the United States contains 
a grant to the general government, of all powers neces- 
sary to the external and internal administration of 
national authority; and it prohibits to the several state 
governments, the exercise of any of those powers ; 
thereby showing that the people intended to commit 
the safety and welfare of the nation to the exercise, 
management and control of the {renernl government. 

» 1 Kent Com., 21. 



76 GOVERNMENT. 



CHAPTEE y. 

OF THE CONSTITUTIONAL STRUCTUEE OF THE NATIONAL 
OR GENERAL GOVERNMENT. 

S 157. Ill the construction of a national government, 
it becomes necessary to provide both for an external 
and an internal administration of the authority and 
jiowers of the nation. There must be a department of 
EXTERNAL ADMINISTRATION clothcd with the authority 
and power essential to preserve the sovereignty and 
independence of the nation from whatever dangers may 
threaten it. To this end, the department of external 
administration must have authority and power to con- 
tract alliances ; to make treaties ; to enter into and 
discharge obligations, and to do everything essential to 
the perfect exercise of these powers ; it must hav^e 
authority to declare war, and to provide for carrying it 
on ; to make peace and adjust the rights and duties of 
the nation in respect thereto ; and to do everything 
fully which a free and independent nation must neces- 
sarily do. 

% 158. As the authority and powers above enumerated 
are essential to the existence and administration of a 
nation, it is to be presumed that every people who 
attempt to institute and establish a national goverii- 
ment to secure to themselves and their posterity the 
blessings of liberty, will fully provide for the external 
ADMINISTRATION of such government, hj bestowing on 
it the authority to exercise such powers as are necessary 
to maintain its independence and sovereignty at home 
and abroad. 

g 159. In the institution of the general government, 
the people of the United States intended to provide for 
their existence as a sovereign and independent nation, 
nntil, at least, in their own pleasure they should ordain 
to the contrary. And they further intended to intrust 
the government instituted by them, with the exercise of 
such authority and powers as would make it safe for 
them to commit the defense and welfare of the nation 
to its keeping.^ 

I It is manifest that the people intended to raake the general government 
their only one for national purposes ; as they made no other provision for their 
national existence, security and welfare. The conclusion is, therefore, irre- 
sistible, that if the people intended to remain a sovereign and independent 
nation, and had any just ideas of what authority and powers were essential to 



CONSTITUTIONAL STRUCTURE. 77 

g 160. In pursuance of the intention of the people of 
the United States, the constitution confers on the gen- 
eral government plenary powers to provide for the 
EXTERNAL ADMINISTRATION of their authority over all 
subjects iateruational between themselves and other 
nations ; and it denies to the states the exercise of such 
authority.^ 

g 161. The people of the United States taking their 
station as a sovereign and independent nation, among 
the nations of the earth, took therewith the incidents of 
such station. They necessarily began to figure in the 
grand society of the human race as independent of all 
earthly power. The ijrerogatives and rights of sover- 
eignty are inseparable from sovereignty itself ; therefore, 
they also attached to the people as a nation. As a 
nation it became their duty to maintain their dignity, 
and to cause themselves to be respected ; for in no other 
way could they x)reserve their tranquillity and safety. 
To this end the establishment of a government, to be 
clothed with authority to exercise in their behalf, all 
needed powers, became indispensable. Hence, in the 
institution of the general government, the constitution 
provides, in the most general terms, for maintainiug 
intercourse with nations. It gives to Congress the power 
to regulate commerce ; to the President and Senate, the 
authority to make treaties ; to appoint embassadors and 
other public ministers. It also gives authority to coin 
money and to regulate its value ; to emit bills of credit ; 
to borrow money. It also authorizes the government to 
define and punish piracies and felonies committed on 
the high seas, and offenses against the law of nations ; 
to declare war, grant letters of marque and reprisal, 
and make rules concerning captures on land and water ; 
to raise and support armies ; to provide and maintain a 
navy ; to make rules for the government and regulation 
of the land and naval forces; to i)rovide for calling 

enable a government to provide for, and administer to, their needs as a 
nation, they intended to clothe the general government with such authority 
and powers. For when we know the end they had in view, we have a right to 
suppose they purposed to accomplish that end by what they did ; and, in the 
language of Rutherlorth,itis much more probable that they should fail in 
expressing their meaning, than that their meaning should fall short of the 
purpose tliey designed to obtain. 

1 No state shall enter into any treaty, alliance, or confederation ; grant let- 
ters of marque and reprisal; coinnioney; emit bills of credit; &c. * * No 
state shall, without the consent of congress, lay any imposts or duties on 
Imports or exports, except wliat may be absolutely necessary for executing its 
inspection laws. Nor shall thej^, without the like consent, lay any duty of 
tonnage, keep troops or ships of war, in time of peace, enter into any agree- 
ment or compact with another state or with a foreign power, or engage in war, 
unless actually invaded or in siach imminent danger as will not admit of 
delay. (Art. 1, § 10, Const. U. S.) 



78 GOYERNMENT. 

forth the militia, and for its organization, arming and 
discipline, for its government and employment while in 
the national service ; and also to make all laws which 
shall be necessary and proper for carrying into execution 
the foregoing powers, and all other powers vested by the 
constitution in the government of the United States, or 
in any department thereof. ^ 

g 162. The people of the United States provided for 
maintaining intercourse with other nations, through the 
sole agency of the general government; and for that 
cause they granted to it the powers essential to the main- 
tenance of such intercourse. The power to make trea- 
ties, to enter into and discharge obligations in respect 
to other nations, is given in unlimited terms. This is 
necessary, because the constitution denies the exercise 
of such authority to all other governments ; and yet 
the exercise of this power in a practical manner, is 
essential to the existence and proper administration of 
national authority. The i)ower to make treaties being 
nnqualifled, it necessarily includes the authority to enter 
into treaty obligations of every character and descrip- 
tion, essential to the peaceful and prosperous existence 
of the nation.^ 

% 163. The power to bind the nation by treaty stipu- 
lations must come from the national sovereignty. Those 
who are intrusted with the exercise of governmental 
authority, are limited to the exercise of the powers 
conferred. Therefore, the treaty making power, by the 
exercise of which, obligations are to be assumed or 
discharged by the nation, must be granted to the gov- 
ernment by tiie fundamental law, or it cannot exercise 
the power. And the people in the grant of the power 
to make treaties, usually designate the particular man- 
ner in which it is to be exercised.^ 

1 See Const. U. S., art. 1, ? S ; art. 2, ? 2. 

2 " Treaties or the contracts of nations are recognized and enforced by inter- 
national law ; but they no more form a part of it than the contracts of private 
persons form any part of the municipal law bj'- which they are enforced. Care 
must be taken not to confound those rules, which properly belong to the law 
of nations, with those founded upoii treaties. Treaties are declaratory of 
International law, so far as they imply or set forth its principles; but they are 
in derogation of it between the contracting parties, so far as their legal rights 
are varied by their mutual stipulations. Usage as a part of the law is derived 
from the perpetual current of decisions and treaties. Treaties whicli depart 
from the custom do not alter the law of nations. By a confusion of terms 
they have been styled conventional law, which is but anotlier term for the law 
of nations. They are, in truth, conventional obligations recognii;ed by the 
law of nations." (See 1 Wildman's Inst., p. 2.) 

3 " Public treaties can only be made by the superior powers, by sovereigns 
who contract in the name of the state — nation. * * The sovereign who pos- 
sesses the full and absolute authority, has, doubtless, a right to treat in the 
name of the state he represents ; and his engagements are binding on the 



CONSTITUTIONAL STRUCTURE. 79 

g 164. The general government having authority to 
make treaties of every character and nature essential 
to the well-being and harmony of the nation in its inter- 
course with other nations ; having power to bind the 
nation by its compacts and agreements in that respect ; 
to borrow money, if necessary to fulfill its engage- 
ments; to regulate commercial intercourse with them; 
to send to, and receive from them, ministers plenipo- 
tentiary; to appoint consuls, etc., and also having 
authority to declare war, and to make all necessary 
provisions for carrying it on ; to conclude peace, and to 
adjust the rights of the parties by requiring or granting 
such conditions as are essential to that end ; has all the 
powers and authority essential to external national 
administration ; all, in that respect, that any national 
government can have, or exercise.^ 

g 165.. In the institution of the national government 
it was necessary to provide for an internal national 
administration. The national citizens had rights and 
interests common to them as members of the nation, 
which required the favor and protection of a common 
government. Within the territorial limits of the nation 
were existing thirteen state governments. They had 
been instituted by their respective inhabitants for pur- 
poses of local administration. But while the state gov^ 
ernment was intrusted with the exercise of the authority 
of the people within its limits, it could exercise no 
authority beyond. As a state merely, the people had 
no authority outside its limits. For as state citizens 
only, they had no national status. 

§ 166. The government of Massachusetts was never 
a national government. A mere citizen of Massachu- 
setts had no nationality. It was only when state lines 
disappeared, and the citizens of all the states stood 
shoulder to shoulder as members of one society, with a 
common interest and a common couutrj^, that nation- 

whole nation. But all rulers of states have not power to make public treaties 
on their own authority alone; some are obliged to talie the advice of a senate, 
or of tlie representatives of tlie nation. It is from tlie fundamental laws of 
eacli state — nation — that we must learn where resides tlie authority tliat is 
capable of contracting with validity in the name of the state." (Vattel, J 151.) 

1 It is difficult to conceive of any avithority or power essential to the external 
achninisiration between sovereign and independent nations, whicli is not 
granted in the constitution, to be exercised by the general government. 
Every sort of compact or agreement necessary to adjust their rights and inter- 
ests in time of peace, can be entered into by the general government, and 
made binding upon the nation ; and when war threatens, the government can 
invoke and command the power of tlie nation; can command and apply tlie 
means necessary for raising and equipping tlie land and naval forces; can 
marslial and lead them against the enemy ; In short, can do everything neces- 
sary to be done in war and peace. 



80 GOVERNMENT. 

ality attached to tliem. As sucli, they declared their 
common independence. As such, they unitedly achieved 
that independence, and were unitedly recognized as one 
katio:n^.^ 

g 1G7. As soon as the people of the states had united 
as one people, to achieve their common independence, 
and to establish themselves as a sovereign and inde- 
pendent nation, they became members of the new 
nation ; and having established a common or national 
government, they became the citizens of that govern- 
ment ; and hence, had a double citizenship : to wit, a 
national, and a state citizenship. As members of the 
nation, their rights, interests and authority extended 
over the national domain, and throughout the entire 
territorial limits of the nation. Their representatives 
and senators were to legislate for the whole nation. As 
members of the state, their rights, interests and powers 
were limited to their respective states. Their laws had 
no binding authority outside their respective limits. 

g 168. Inasmuch as the citizens of the general gov- 
ernment about to be instituted, were likewise citizens of 
the several states, in providing for the internal adminis- 
tration of the national government, it became necessary, 
either to absorb the governmental powers of the states, 
and institute but one consolidated government for them 
all, or to continue the state governments in the exercise 
of their authority and powers over local and domestic 
matters ; and to confer upon the general government 
jurisdiction and authority over, matters pertaining to 
them as members of the nation, and citizens of its 
government. 

g 169. The interests of the citizen of the state gov- 
ernment, and of the citizen of the national government, 
were not adverse, but were in harmony. The citizen of 
the state was likewise a citizen of the nation ; having 
national rights and interests superadded to his local 
rights and interests ; and he sought favor and protec- 
tion in the exercise and enjoyment of both classes of 
rights and interests. The state, as such, could adminis- 
ter only in local matters ; could provide only for local 
or state interests. Therefore the general government 

1 " But Georgia cannot be viewed as a single, unconnected sovereign power, 
on whose legislature no other restrictions are imposed than may be found in 
its own constitution. She is a part of a large empire. She is a member of the 
American union, and the union has a constitution, the supremacy of which 
all acknowledge, and which imposes limits to the legislatures of the several 
states which none claim a right to pass." (Fletcher v. J'eek, 6 Cranch, 136 ; see 
also 9 Wheat., 187; 5 id., 514 ; 6 id.,-414 ; 12 id., 334; 2 Pet., 590.) 



CONSTITUTIONAL STRUCTURE. 81 

became a necessity, notwithstanding the existence and 
authority of the state governments.^ 

§ 170. Therefore in providing for the internal admin- 
istration of the general government, and yet permitting 
the state governments to continue in the exercise of 
governmental authority over matters of a local and 
domestic character, it became necessary that the powers 
committed to the general government to be exercised 
by it, and those which were to remain to be exercised by 
the state governments, should be distinguished the one 
from the other, to avoid conflict of jurisdiction and 
authority, in the x)ractical administration of the same, 
over the same people and within the same territorial 
limits. 

§ 171. The authority and powers to be exercised by 
the two governments could be generally distinguished, 
by giving to the general government authority over 
matters and subjects of a national character ; and to 
the state governments, authority over matters purely 
local and domestic.^ But such definition standing alone, 
would not be sufficiently certain to avoid constant con- 
flict of jurisdiction. For there are a large class of 
interests common to the state and national citizen. It 
therefore became necessary in the institution of the 
general government, to define very clearly the powers 
intrusted to its exercise, leaving the unenumerated 
powers essential to the government of the state, to be 
exercised by the state governments. 

g 172. The people, in the institution of the general 
government, and in the endowment of it with authority 
to exercise the powers specified and implied in the 
grant, did not make it residuary in character, as they 
did the state governmen.ts ; for the plain reason, that it 
was comparatively easy to enumerate the powers essen- 
tial to a purely national administration; w^hile there 

1 "The political character of the several states of this union in relation to 
each other is tills : For all national purposes the states and citizens thereof 
are one, united under the same sovereign authority and governed by the 
same laws. In all other respects, the states are necessarily foreign to, and 
independent of, each other." (2 Pet., 590; 10 id., 579; 12 Wheat., 334.) "The 
national and state system are to be regarded as one whole." (6 Wheat., 419.) 
" In America, the powers of sovereignty are divided between the government 
of tli£ union, and those of the states. They are each sovereign witla respect to 
the otflects committed to it; and neither sovereign with respect to the objects 
committed to the other." (4 Wheat., 410.) 

2 "For all national purposes, the states and the citizens thereof, are one ; 
united under the same sovereign authority, and governed by the same laws. 
In all other respects the states are necessarily foreign to, and independent of, 
each other." * * The states retain tlieir individual sovereignties, and with 
respect to their municipal regulations, are to each other sovereign." (2 Pet., 
690; 10 id., 579.) 

11 



82 GOVERNMENT. 

would be no limits to the detail of powers essential to 
a proper administration in respect to subjects of a local 
and domestic character. 

^ 173. The national and state governments, then, are 
neither of them primary, in respect to each other. They 
are each corporate institutions created by the authority 
of the people, for specific purposes only. Each are 
intrusted with the exercise of such authority and j)owers 
as the people have ordained; and each are prohibited 
from the exercise of certain other powers. Hence, in 
the tenth amendment of the constitution of the United 
States, the people are recognized as possessing i)owers 
not intrusted to the exercise of either the general or 
state governments.^ 

% 174. The general and state governments are each 
intrusted with the exercise of governmental authority 
properly belonging to the department of internal admin- 
istration. That is, in a nation where there are no other 
governments than the general or national one, to admin- 
ister in local matters, or in matters pertaining to the 
intercourse of one citizen or inhabitant with the other, 
and in respect to the rights and duties arising out of that 
intercourse, the internal administration of the nation 
embraces these subjects, here committed to the jurisdic- 
tion of the states. And the difference between such a 
nation and the United States as a nation, consists mainly 
in the division or distribution of the subjects of internal 
national administration between the general and state 
governments ; giving to the general government juris- 
diction over a certain enumerated class of these sub- 
jects ; and giving to the state governments jurisdiction 
over what remains of them. 

§ 175. Such, then, is the structure of the government 
of the United States, including both the general and 
state governments. As institutions, neither of ■ them 
possess any original or inherent authority. They are 
merely the corporate agents of the people, authorized 
to exercise the powers committed to their trust in the 
manner and for the purposes ordained by the people. 
The general government holds its powers in trust for 
the people of the nation, and it is administered by-the 
will of the nation, without respect to state lines. The 
national citizen of New York, by his representatives 

1 "The powers not delegated to the»United States by tlie constitution, nor 
prohibited by it to the states, are reserved to the states respectively, or to the 
people." (10th Amendment of the Const. U. S.) 



CONSTITUTION" OF UNITED STATES. 83 

and senators in congress, legislates for every part of 
the nation ; and so in respect to the national citizens 
of the other states. But the people of each state, as 
state citizens, administer only within the limits of their 
respective states, in matters pertaining to local and 
domestic interests alone. 



CHAPTER yi. 

THE CONSTITUTION OF THE UNITED STATES — 
ITS PEEAMBLE. 

§ 176. The constitution of the United States was 
ordained and established by the people, for the purpose 
of instituting a national government to be intrusted 
with the exercise of national authority over all subjects 
committed to its jurisdiction, to the end that the defense 
of the nation might be provided for, and its welfare 
secured.^ 

g 177. " This leads to an inquiry into the origin of 
this government, and the sources of its power. Whose 
agent is it ? Is it the creature of the state legislatures, 
or the creature of the people? If the government of 
the United States be the agent of the state govern- 
ments, then they may control it, provided they can 
agree in the manner of controlling it ; if it be the agent 
of the people, then the people alone can control it, 
restrain it, modify or reform it. * * * Is it the 
servant of four-aud-twenty masters of different wills, 
and different purposes, and yet bound to obey all ? 
This absurdity arises from a misconception as to the 
origin of this government in its true character. It is 
the peoi)le's constitution, the people's government ; 
made for the people, and answerable to the people."^ 

l"We, the people of the United States, in order to form a more perfect 
union, establish justice, insure domestic tranquillity, provide for the common 
defense, promote the general welfare, and secure the blessings of liberty to 
ourselves and our posterity, do ordain and establish tliis constitution for the 
United States of America." (Preamble to Const. U. S.) 

2 Webster in reply to Hayne, Jan. 27, 1830, in the U. S. Senate. Debates in 
Congress, vol. 6, pt. 1, p. 74. 

"To the formation of a league, such as was the confederation, the state 
sovereignties were certainly competent. But wlien, in order to form a more 
perfect union, it was deemed necessary to change the alliance into an effective 
government, possessing great and sovereign powers, and acting direeily on the 
people, the necessity of referring it to the people, and of deriving its powers 
directly from them, was felt and acknowledged by all." (4 Wheat., 404.) 

" The constitution of the United States was ordained and established, not by 
the states in their sovereign capacities, but emphatically, as the preamble of 



84 



GOVERNMENT. 



g 178. This preamble was not adopted as a mere 
formulary. It was a solemn promulgation of a funda- 
mental fact, vital to the character and operations of 
the government being instituted.^ The one nation, 
sovereign in its authority to ordain and establish a 
government, was about to exercise that authority, that 
it might have one government ; actuated by one pur- 
pose ; governed by one mind and will, as expressed by 
such government ; having one interest in the common 
defense and general welfare of the people as a nation. 
Hence the language : " We, the 'people of the United 
States, do ordain and estahlish this constitution for the 
United States of America ;" not, we the states do enter 
into a compact or treaty with each other.^ 

§ 179. At the time the constitution was submitted to 
the people for their ratification, those who feared a con- 
solidated government, objected to the preamble, because 
it declared that the constitution was to be ordained and 
established by the people.^ 

the constitution declares, by tlie people of the United States." {Hunter v. 
Martin, 1 Wlieat. R.. 305, 324; see also McCiMoch\. Maruland, -4 id., 310, 401, 405; 
Cohens v. Virginia, id., 264, 413, 414.) 

" Filially, how can any man get over the words of the constitution itself? 
•We, the people of the United States, do ordain and establish this constitu- 
tion.' These words must cease to be a part of the constitution, they must be 
obliterated from the parchment on which they are written, before any human 
Ingenuity or human argument can remove the popular basis on which the 
constitution rests, and turn the instrument into a mere compact between 
sovereign states." (Webster in U. S. Senate, Feb. 16, 1833.) 

See also Story's Com. on Const,, § 463; see also 1 Wilson's Lectures, 417. 

1 Story's Com. on Const., §463. 

2 The impossibility of using the state governments as agents for providing 
for, and adininlstcrinsj; to, the needs of the American people as a nation either 
at home or abroad, had been fully demonstrated by an experience of thirteen 
years. Said Edmund llandolph, in the Virginia convention : " The confedera- 
tion has done a great deal for us, we all allow. But it was the danger of a power- 
ful enemy and the spirit of America, and not any energy in that sj'stem, that 
cal'ried us through that perilous war. The greatest exertions were made when 
danger was most imminent. This system was n6t signed till March, 1781. 
Maryland had not acceded to it before. Yet the military achievements and 
other exertions of America previous to that period, were brilliant, eflectual 
and successful as they could have been under the most energetic government. 
This clearly shows that our perilous situation was the cement of our union. 
How different the scene when this peril vanished, and peace was restored ! 
The demands of congress Avere treated with neglect; one state complained 
that another had not paid its quotas as well as itself- public credit was 
gone; for, I believe, wore it not for the private credit of individuals, we should 
have been ruined long bofoie that time ; commerce languishing ; produce fall- 
ing, and justice tramiiled under foot. We became contemptible in the eyes of 
foreign nations. Tliey tlisearded us as little wanton bees, who had played for 
liberty, but had not surticient solidity or wisdom to secure it on a permanent 
basis, and were therefore unworthy of their regard. It was found that congress 
could not even enforce the observance of treaties. That treaty under wlilch 
we enjoy our present tranquillity was disregarded. * * * What was the reply 
to the demands and requisitions of congress? You are too contemptible; we 
will despise and disregard you." (3 Elliott's Debates, by Lippincott, p. 27.) 

These were among the reasons assigned by Governor Randolph why the 
confederated system had been abandoned; and why a national government 
ordained and established by the people had been resorted to, to wit: the neces- 
sity for a national govenament. 

3 Patrick Henry, in the Virginia convention, said ; " I would make this 
inquiry of tliose worthy characters who composed a part of the late federal 
convention. I am sure they were fully impressed with the necessity of form- 
ing a great consolidated government, instead of a confederacy. That this is a 



CON"STTTUTION" — ITS PREAMBLE. 85 

§180. The general government thus instituted, derived 
its existence und authority immediately from the people 
of the United States as members of the nation, having 
sovereign authority to ordain and establish for them- 
selves such government as they thought proper ; and 
to intrust to it the exercise of such authority and powers 
as to them seemed wise and good. By ordaining and 
establishing the constitution, each citizen of the nation 
agreed with all, and all with each, in the institution and 
endowment of the general government, in the manner 
and for tlie purposes therein expressed. 

S 181. The general government is neither a consoli- 
dated government, dangerous to the liberties of the 
states on the one hand, nor a confederated government 
dangerous to the stability of the nation on the other. 
It is a government of the people of all the states; 
representing them in their national sovereignty and 
character ; protecting them in their national interests ; 
defending them in the exercise of their national rights ; 
promoting their national welfare, and securing to them 
the blessings of liberty^ as national citizens. It was 
instituted by the people for such purposes, because the 
state governments could not be employed in that 
capacity. There was but one nation, and it could be 
authoritatively represented only by one national gov- 
ernment. 

^ 182. The words, " we the people of the United 
States," require no interpretation, and, hence, inter- 
pretation is not allowable. The preamble is worded in 
clear and precise terms ; the meaning is evident, and 
leads to no absurd conclusions; therefore, there is no 
reason for refusing to admit the meaning which it nat- 
urally suggests.^ The " people of the United States " 
were the people of all the states who had united in 
the declaration and achievement of their common 
independence, taken together as one people — one 
NATION — acting together for the institution of one 
GOVERNMENT, to which the exercise of national author- 
ity was to be committed.^ 



faro, leads ino to ask, who Jiuthonzed thoiu to spoak the latiguaKO of 'we the 
proplr' instead of 'we the states?' States are the characteristics and the soul 
of a coiileiU'ratioii. If tlie states bo not tlie agents of this compact, it must be 
one i^reat coiisolidatt'd Kovernmont." (3 Elliott's Debates, by Lippiucott, p. 22.) 

1 See ante, jJ ll.'") and note. 

2 The language used M'as the only appropriate languapce whicli could have 
been used by the people of all the states, acting as cue, lor the purpose of iusti- 



86 GOVERNMENT. 

S 183. The language of the preamble, " we the people, 
&c., do ordain and establish this constitution for the 
United States of America," is the language of a people 
speaking and acting from their original sovereignty. 
It is not the language of sovereign states entering into 
a compact, agreement or confederation with each other. 
The people, in virtue of their inherent sovereignty as a 
nation, were covenanting each with all, and all with 
each ; exercising their authority to provide for them- 
selves and their posterity an institution, by which they 
could will and act as one people, iiavin& one mind 
AND PUKPOSE, on all subjects pertaining to national 
existence, security and happiness.^ 

g 184. "The people of the United States" included 
the peoiile of all the states, without state discrimination. 
" We the people," &c., was the only form of expression 
appropriate to define those who constituted the nation, 
without including in the definition something of the 
limitation of state organization. This form of expres- 
sion included as well the people inhabiting the terri- 
tories as those residing in the organized states ; while 
the expression, the people of the several states, would 
literally have excluded them. We, the people of the 
United States, is a national expression, descriptive of 
the constituents of the nation, and cannot be made 
more plain in its significance by any interpretation. Its 
natural meaning is evident, and leads to no absurd 
conclusion. 

g 185. The purposes for which the people ordained 
and established the constitution were also national in 
character. The first purpose named was, " in order to 
form a more perfect union." A more perfect union was 
not needed for purposes of state administration. Their 
several state governments were fully competent to ad- 
minister in respect to persons and subjects over which 
they had jurisdiction. In respect to matters local and 
domestic, the state government could act promptly 
and efiiciently, because it was a unit, and it possessed 
the necessary authority. It was only in respect to sub- 

tuting a national government. The instrument Ibeing a constitution of gov- 
ernment, it was necessary and proper tliat it should show upon its face who 
were the parties that ordained and established it, and the purposes for whiclx 
they established it. By its language, in presenting the autliors of the instru- 
ment and the grantors of the powers delegated, it abolislied state lines and 
state jurisdiction. State individuality was purposely lost sight of. The lan- 
guage is, "we the people of the United States"— not, we the people of the 
SEVERAL STATES—" do ordain and establish this constitution," &c. 

See remarks of Webster on this subject in U. S. S., Feb. 16, 1833, G. & S. 
Cong. Deb., vol. 9, pt. I, p. 555. See appendix, p. — 



CONSTITUTION — ITS TRE AMBLE. 87 

jects over which tlie state had no jurisdiction, and yet 
ill respect to wliich governmental anthority and power 
were demanded for the safety and welfare of the people. 
It was, ill respect to those subjects of interest, common 
to the people of all the states, as members of one great 
community ; interest connecting the citizens of New 
York Avith the citizens of South Carolina, and with the 
citizens and governments of foreign lauds, that made a 
more perfect union of the people of the United States 
necessary. Hence, the union called for was a national 
union of the people ; that they might institute a gov- 
ernment which would be, in respect to national interests, 
a unit ; having but one mind, one will, one purpose 
and one power, in pursuing the necessary end. 

§ 18G. The more perfect union sought by the people 
was not a more perfect union of the several states as 
political institutions, intrusted with the exercise of the 
governmental authority of their people. A union of 
that character already existed. But it was a luiion in 
which there were diverse minds, purposes and deter- 
minations; each dictating, none obeying; each jn'opos- 
ing, none performing ; each sovereign, no one subject.^ 
If each of the thirteen state governments were sove- 
reign in their governmental authority over all subjects 
within their respective limits, there could have been no 
union so perfect as to fuse their thirteen minds and wills 
into one national mind and will, without dissolving 
their state individualism, and thus destroying their state 
sovereignty. The union established under the articles 
of confederation was fundamentally and radically de- 
fective, in this, that it permitted the institution called 
government, to bo subject to the diverse minds and 
wills of thirteen states. That was the weakness which 
threatened the life of the nation, and which required 
for a remedy a more perfect union of the sovereign 
people — not of the political states. 

§ 187. The governments of the states were mere local 
institutions of the people, intrusted with the exercise 
of their authority within their respective limits. Having 
been instituted by the people of the local territory 
embraced within their respective limits, the states had 
no jurisdiction beyond those limits. Therefore, as politi- 
cal institutions, tliey had no national authority ; and, 
consequently, as political institutions, they could confer 

1 See ante, 2 'Jl and note. 



88 GOVERNMENT. 

none. The people of the several states had becooie 
national citizens — not through their respective state 
governments, but in virtue of the union of the good 
people of all the colonies, in proclaiming and establish- 
ing themselves as a nation. The " more perfect 
UNION " demanded, then, was the . more perfect union 
of the people, to be represented by one general govern- 
ment for national purposes. 

g 188. This more j)erfect union of the people, de- 
manded, was a union of them, not as citizens or 
inhabitants of particular states, but as people of all 
the states having rights and interests iu common. To 
become a nation, the sovereignty of nationality must 
attach, which is independent of, and above all other 
earthly authority. This kind of sovereignty could not 
attach to a state with its limited jurisdiction and 
authority, nor could it attach to the people of a state 
as state citizens merely, because the state was not a 
nation and had no claim to nationality. The advan- 
tages to be secured by the more perfect union of the 
people as a nation, were, among other things, to 
extend, by administration, the national rights, powers 
and authority of each citizen over all the states, and 
make all subjects of one government. 

g 189. The union of the people of the United States 
as a nation, and the institution of the general govern- 
ment to represent them as such, necessarily involved 
the denial of sovereignty to the states. The absolute 
sovereignty of the nation necessarily excludes the like 
sovereignty in any other body than its own within its 
limits. The nation as a society, is a unit ; as a body, 
it is one ; as a power, it has no superior ; as a sovereign, 
it is absolute, and answerable to no earthly tribunal. 
This national personality occupies and possesses every 
inch of territory, and every iota of authority and power 
within the limits of the United States. What the 
people as a nation legislatively will, is the supreme 
law ; what they determine, is final, and from it there is 
no appeal. 

§ 190. When the people ordained and established the 
constitution of the United States, and thus instituted 
the general government with its powers, they asserted 
this sovereign authority over all. The convention which 
drafted the constitution for the people of the United 
States proposed, among other things, that the consti- 
tution migiat be amended in the manner prescribed. 



CONSTITUTION — ITS PREAMBLE. 89 

The people, in ratifying the constitution, sanctioned the 
proposed mode of making amendments. By it, any of 
the states, as people or government, may be deprived 
of the exercise of such powers as three-iburths of the 
others may ordain by way of amendment to the consti- 
tution, whether they assent to it or not. The assertion 
of this authority by the nation, necessitates the obedi- 
ence of the states. They are amenable to other and 
higher authority. There is an earthly power above 
them, to which, by their own oaths, they are bound to 
submit. There is that authority which can make laws 
that are supremely obligatory upon them, notwithstand- 
ing the authority of their state constitution and laws to 
the contrary.^ 

S 191. The authority by which the general govern- 
ment was instituted, and is sustained, is absolute over 
all state authority, whenever the people 'see fit to exer- 
cise it. The authority which can withdraw one subject 
from the jurisdiction of the states, and can confer on the 
general govej'nment additional power to regulate and 
control it, can withdraw all subjects from state jurisdic- 
tion, and intrust the general government with plenary 
powers over all matters of internal administration. It 
is no answer to say, the people will never consent to 
such amendments. They have the authority to assent 
to them ; and that involves the absolute authority of 
the nation over the states. 

g 192. The amendments made to the constitution in 
the manner prescribed, become a part of the constitu- 
tion, and, consequently, of the supreme law of the 
nation; and the one-third of the states not assenting 
to such amendment, are nevertheless bound thereby, 
notwithstanding the constitutional encroachment made 
upon their state constitution and laws. A state or 
people thus situated are not sovereign in the absolute 
sense. There is a higher authority to which they, as 
people and states, are subject. Their constitution and 
laws may be abrogated, in whole or in part, without 
their consent ; and they are without remedy, except in 
revolution. 

1 " The congress, whenever two- thirds of both houses shall deem It necessary, 
shall propose amendments to this constitution, or, on tlae application of the 
legislatures of two-thirds of the several states, shall call a convention for pro- 
posing amendments, which, in either case, shall bo valid to all intents and 
purposes, as a part of this constitution, when ratified by the legislatures oi 
three-fourths of the several states, or by conventions in three-fourths thereoij 
as the one or the other mode of ratification may be proposed by the congress, 
&c. (Art. 5 of the Const, of the U. S.) 

12 



90 GOVERNMENT. 

§ 193. Such was tlie " more perfect union " sought 
by tbe people of the United States when they ordained 
and established the national constitution. It was to 
weld the people of all the states, for national purposes, 
into one grand society as a nation, having one interest, 
one purpose, one aim, and one destiny ; to institute for 
such j)eople one government, clothed with authority and 
power to command respect and honor from abroad, 
and obedience and support at home ; and thus to secure 
to all its citizens the full enjoyment of their civil rights. 

§ 194. Another purpose for which the constitution 
was ordained was " to establish justice." The state 
governments, if they would, had full power to establish 
justice between the citizens thereof, in respect to sub- 
jects of a local and domestic character. But they could 
exert no authority over subjects international, or which 
involved the jurisdiction of persons or subjects situated 
beyond their respective limits. The congress of the 
United States, under the articles of confederation, had 
no power to exact obedience, or to punish disobedience, 
to its ordinances. The great defect in the confederation 
was this lack of power to give sanction to its laws.^ 
There was no express authority to exercise force, and 
it could not be implied, because the articles of confed- 
eration prohibited any implication of power by the 
congress. The congress could neither impose lines, nor 
direct imprisonment, nor divest privileges, nor declare 
forfeitures, nor suspend refractory officers.^ 

g 195. The source of this Aveakness under the con- 
federation was, that the states refused to commit to 
the congress the exercise of the necessary authority 
to administer as a government of the nation. It was 
rather an advisory than a legislative body. It could 

1 Kent's Com., 200; Story's Com. Const., g 252. 

2 By this political compact — articles of confederation— the United States, In 
congress, had exclusive power for the following purposes, without being able 
to execute one of them : They might make and conclude treaties, but they 
could only recommend the observance of them; they might appoint embassa- 
dors, but could not even defray the expenses of their tables; they could borro^^r 
money in their own name on the faith of the union, but could not pay a dol- 
lar ; they were authorized to coin money, but could not commiand the means 
to buy the bullion ; they might make war and deterniine the number of troops 
necessary, but they could not raise a single soldier ; in short, they might 
declare everything, but they could do nothing. (Story on Const., ^ 246.) 

Governor Randolph, in the Virginia convention, in speaking of this lack of 
power under the confederation, after stating what had been accomplished dur- 
ing the war, remarks : " How different the scene when this peril vanished, and 
peace was restored ! The demands of congress were treated with neglect. * * 
We became contemptible in the eyes of foreign nations. They discarded us as 
little wanton bees, who had played for liberty, but had not sufficient solidity 
or wisdom to secure it on a permanent basis. * * It was found that congress 
could not even enforce the observance of treaties. The treaty under which we 
enjoy our present tranquillity was disregarded," &c. (3 Ell. Deb., p. 27, Lip- 
pincott's ed.) 



CONSTITUTION — ITS PREAMBLE. 91 

investigate and recommend, but it conld not command 
and enforce. The thirteen states maintaining- tlieir 
separate and independent autliority ; acting from tbeir 
supposed separate interests ; jealous of the particular 
burdens imposed upon tbem ; jealous of the tardiness 
of other states in fulfilling their engagements ; com- 
plaining that others had not paid its quotas, there was 
no alternative left but to give up national existence 
and to go back to a state of colonial dependence, or 
to change the system, and establish a government of 
the people, perfect in all its departments, to legislate, 
adjudge, and executed by the authority of the nation.^ 

^ 19G. The nation could not maintain its existence 
among the nations, without maintaining international 
relations with them. It, therefore, became indispensable 
that those relations should be regulated and determined 
by treaties, compacts and agreements ; that some agency 
should be established by which those necessary treaties 
and agreements could be made and entered into on the 
faith of the nation ; and, being made, it was also neces- 
sary that they should be observed and kept. This 
involved the binding of the nation by the exercise of 
its authority, and the command of its resources, by 
which its faith might be kept and its pledges redeemed. 
This required the institution of a government clothed 
with the necessary authority and power to represent the 
nation as a unit in mind, purpose and power ; to under- 
take, and to i^erform for, and in behalf of the nation. 
In no other way could justice be established by being 
made certain and secure to every one having to do with 
the nation. But this end could not be secured, so long 
as the nation was in any degree dependent upon the 
diverse minds and wills of thirteen independent state 
governments to determine what justice required, and by 
what means, if any, it should be enforced. Therefore, 
the establishment of justice between the people of the 
United States as a nation, and other nations, as well 
also as between the citizens of the nation, required the 

1 After showing that under the confederation there was no power to enforce 
the authority of tlie congress, and that the nation was on the very verge of 
ruin, Governor Randolpli, in reply to tlie remarks of Patrick Henry, demand- 
ing by what autliority the framers of the constitution had used the expression 
of " ive the people," instead of we the states, answers : "The gentleman inquires 
why we assume the language of 'we the people?' I ask, why not? The gov- 
ernment is for the people, and the misfortune was, that the people had no 
agency in the government before. The congress had power to make peace and 
war under the old confederation. Granting passports by the law of nations is 
annexed to this power, yet congress was reduced to the humiliating condition 
of being obliged to send deputies to Virginia to solicit a passport." (3 Ell. 
Deb., p. 29.) 



92 GOVERNMENT. * 

institution of a general government by the people, 
which should hold its authority of the j)eople, and be 
amenable to them alone. 

g 197. Again, the citizens of the several states were 
alike national citizens, and equally entitled to protec- 
tion by the nation in their national rights and interests. 
There were interests common to the members of the 
nation which the local governments were not compe- 
tent to adjust. Those engaged in commercial pursuits 
were peculiarly liable to the unequal operations of the 
laws of the different states affecting trade. That whole 
class of subjects committed to the regulation and con- 
trol of congress by the constitution could have been 
justly provided for in no other way. The power to lay 
and collect taxes for national purposes ; also, duties, 
imposts and excises ; the power to regulate commerce ; 
to establish uniform rules of naturalization, and uni- 
form laws on the subject of bankruptcies ; to coin 
money and regulate its value, could not have been 
exercised justly to the national citizen by the state 
governments. The national government was therefore 
necessary and appropriate to establish justice, in these 
respects. 

§ 198. But the institution of the general government 
under the constitution was necessary to establish justice 
between the nation and its citizens, and foreign nations 
and their citizens. After the confederacy was formed, 
and the rights of war as a sovereign belligereuj: nation 
had been assumed, authority to make captures and 
bring in ships and cargoes for adjudication, necessarily 
flowed from the exercise of these rights, according to the 
law of nations. The several states retained, or rather 
assumed, the power of appointing prize tribunals to 
take cognizance of these matters, so that there were 
thirteen separate and independent prize tribunals insti- 
tuted by one party carrying on a war. And although 
the articles of confederation authorized congress to insti- 
tute appellate tribunals, which they did, they had no 
authority to enforce their decisions. Consequently these 
appellate tribunals were disregarded, and their decisions 
treated as nullities, and neutral individuals and neutral 
nations were without any adequate redress for the most 
inexcusable injustice, and the nation subjected to immi- 
nent dangers ; and there was no remedy for these evils 
and the consequent injustice, until the people instituted 
the general government, and thus placed these ques- 



CONSTITUTION— ITS PREAMBLE. 93 

tions where they could be adjudicated and determined 
by the authority of the nation.^ 

§ 199. Again, the treaties which were entered into by 
congress with foreign nations were neglected, although 
they were declared to be absolutely obligatory upon the 
several states. AVhile these states assumed to exercise 
their authority in national affairs they did not regard 
the responsibilities of the nation. They did not, indi- 
vidually, hesitate to violate treaty obligations entered 
into by the congress, both by legislation and adjudica- 
tion. The treaty of 1783, by which, as against Great 
Britain, our independence was legally established, was 
notoriously violated, and the provisions therein for pay- 
ing debts, discarded. This could not be otherwise while 
the national administration was committed to the petty 
interests, jealousies and diverse wills of thirteen local 
governments. And because of the existence of such 
defects iu the confederation, it was well said : " We, the 
people, do ordain and establish this constitution, for the 
purpose of establishing justice.'''' 

% 200. The states treated the debts of the nation as 
though they were under no obligation to provide for 
their payment. The obligations of the nation to those 
creditors who had advanced money, and to those soldiers 
who had served in the war, were disregarded by the 
states. Particularly the officers and soldiers who had 
achieved the independence of the nation, "were suffered 
to languish iu want, and their just demands evaded or 
passed by with indifference. No efficient system to pay 
the public creditors was ever carried into operation 
until the constitution was adojited." ^ 

§ 201. The conduct of the several states, in the local 
administration of justice among their respective citi- 
zens, was, if possible, more reprehensible. Laws were 
continually enacted by the state legislatures violating 
the sacredness of contracts ; such as laws authorizing the 
payment of debts by installments at periods differing 
from the original terms; laws suspending the remedies 
for the recovery of debts ; laws authorizing the delivery 
of any kind of property in payment of debts, upon an 
arbitrary or amicable appraisement; laws closing, for a 
limited time, the courts, under particular circumstances; 
insolvent laws — some of a permanent, and some of a 

1 story's Com. Const., g 4S.5 and notes. 

2 Story's Com, on Const., § 486, 



94 GOVERNMENT. 

temporary character — wliicli operated like a general 
gaol delivery in several of the states ; in short, the prin- 
ciples of justice were habitually subverted under the 
administration of the local governments, through their 
unwise and partial legislation. Hence, there was pecu- 
liar meaning in this expression, " to establish justice," 
for which, among other things, the people of the United 
States ordained and established their constitution for 
the United States of America.^ 

§ 202. Another purpose for which the people ordained 
and established the constitution for the United States, 
was "to insure domestic tranquillity." First, there were 
dangers quite likely to arise out of the conflicting inter- 
ests of the several states. Although the people of the 
United States were a nation, hitherto they had not 
organized a government to exercise their authority as 
such ; and there was no institution among them author- 
ized to adjust the conflicting claims which were liable 
to arise between the several states, or between the state 
and citizens of other states. That the state govern- 
ments were disposed to maintain state authority, and 
assert their peculiar interests, even in questionable 
cases, was quite apparent. Instances were not unfre- 
quent where justice was denied, owing to unjustifiable 
preferences, fostered in favor of state citizens where the 
interests of citizens of other states were concerned. 
Moral obligations were discarded, and feelings of retali- 
ation, sure to arise when the law furnishes no redress, 

1 See Story's Com. on Const., § 487 ; see also Chase, J., in Ware v. Hylton, -3 
Dall., 199, 1 Cond. R., 99.) 

" Prior to the date of the constitution, the people had not any national tri- 
bunal to which they could resort for justice. The distribution of justice was 
then confined to state judicatories in whose institutions and organizations 
the people of the other states had no participation, and over whom they had 
not the least control. There was then no general court of appellate jurisdic- 
tion, by whom the errors of state courts, affecting either the nation at large or 
the citizens of any other state, could be revised and corrected. Each state was 
obliged to acquiesce in the measure of justice which another state might yield 
to her, or to her citizens ; and that in cases where state considerations were 
not always favorable to the most exact measure. There was danger that, from 
this source, animosities would in time result ; and as the transition from ani- 
mosities to hostilities was frequent in the history of independent states, a 
common tribunal for the termination of controversies became desirable, from. 
motives both of justice and policy. Prior also to that period, the United States 
had, by taking a place among the nations of the earth, become amenable to 
the laws of nations ; and it was their interest as well as their duty to provide 
that those laws should be respected and obeyed. In their national character 
and capacity, the United States were responsible to foreign nations for the 
conduct of each state, relative to the laws of nations and the performance of 
treaties; and then the inexpediency of referring all such questions to state 
courts, and particularly to the courts of delinquent states, became apparent. 
While all the states were bound to protect each, and the citizens of each, it was 
highly proper and reasonable that they should be in a capacity not only to 
cause justice to be done to each, and the citizens of each, but also to cause 
justice to be done by each, and the citizens of each; and that, not by violence 
and force, but in a stable, sedate and regular course of judicial procedure." 
(Remarks of Jay, Ch. J., in Chisholm v. Georgia, 2 Dall. R., 419, 474; S. C, 2 Pet. 
Cond. R., 635, 670 ; see also 2 Graham's Hist. Appendix, 498, 499.) 



CONSTITUTION— ITS PREAI^IBLE. 95 

were enkindled. Laws impairing the obligations of 
contracts were passed by several of the states, affecting 
iujuriously citizens of other states. Had snch states 
been members of the family of nations, they would 
have been somewhat under the moral restraints of inter- 
national law; but being independent governments, cre- 
ated out of separate colonies which had recently thrown 
off the authority of the mother country, they were, as it 
were, subject to no code of laws; as improvised govern- 
ments, they belonged to no sj^stem. Hence, they were 
peculiarly independent, not only of one another, but of 
all earthly governments ; responsible to no one but the 
people of their respective states. In this condition, it 
was morally impossible that thirteen such governments 
should continue to administer in such a manner as to 
avoid conflict. Being subject to no common code of 
laws, recognizing no common authority to decide when 
they disagreed, if this state of things should continue, 
collisions were certain to arise. ^ 

^ 203. Before the revolution, these thirteen states 
were colonies of Great Britain, and they recognized 
the supremacy of her authority. But when they pro- 
claimed their independence, and renounced their alle- 
giance to the British crown, each set up for itself. They 
were no longer political bodies, or societies, revolving 
around a national center, by means of which they 
maintained relations to other nations of the earth ; nor 
did they become nations, and thus take upon them- 
selves the incidents of nationality. The people of the 
thirteen states, in their union, became a nation ; but 
they were without a government by which to exercise 
their authority; and, hence, were a nation unorganized ; 
that is, they were organically powerless. During this 
period, from 177G to 1787, the states within their respect- 
ive limits were supreme in their administration ; not 
because they possessed sovereign authority, or had been 
intrusted with the exercise of it ; but because there was 
no organized body authorized to supervise them. This 
was the peculiar political condition of the United States 
prior to the institution of the general government. One 
nation with thirteen professed sovereignties ; each abso- 
lute ; each independent ; each amenable to no earthly 
authority — not even the authority of international law. 

1 Connecticut once retaliated in an exemplary manner upon enormities 
committed upon lier citizens by a neighboring state, wliicli had passed laws 
affecting inj uriously the citizens of Coilhecticut. (See Federalist, No. 7.) 



96 GOVERNMENT. 

The administrators of such governments must have 
been something more than human, or they would soon 
have found the necessity of a general government to 

INSURE DOMESTIC TEANQUILLITY. 

§ 204. Situated as these states were with respect to 
themselves, they were in a condition to invite factions 
among the people. Those intrusted with the adminis- 
tration of governmental authority would naturally feel 
the independence of their position ; and, hence, would act 
with a less sense Of responsibility than was necessary to 
secure fidelity in the execution of those trusts. A single 
state, as such, was independent and sovereign in respect 
to all other states or governments ; was responsible to 
no one for the manner in which she administered. If 
the federal congress contracted debts, the creditor must 
look to congress, or the states collectively, for payment. 
There was little sense of individual obligation or moral 
responsibility. This naturally induced recklessness, or 
at least indifferent morals, in those charged with state 
administration. Not occupying the position of a sover- 
eign nation in the grand society of the human race, 
they had neither the self-respect, morality or dignity of 
such station. Hence, they were naturally arrogant, 
illiberal, petty and selfish. Their injustice would natu- 
rally induce retaliation. Hence, factions would arise, 
prompted by hatred, revenge, retaliation, self-interest. 
The states being small, divided in interest, naturally 
antagonistic, the prospect of success would encourage 
a few, even, to resist the law with expected impunity. 
These, and other like considerations, demonstrated the 
necessity for instituting a government of a higher 
and more responsible character, to insure domestic tran- 
quillity. 

g 205. " To provide for the common defense." The 
nation was a unit in existence, although it had insti- 
tuted no government to represent that unity in its 
will and action. The oppressions of the British govern- 
ment had compelled the people to unite in defending 
themselves, and, finally, in asserting their common 
independence. But the bond of this union was their 
common danger, arising from their weakness when stand- 
ing separated and alone. Hence, as soon as peace Avas 
established, and danger ceased to threaten, the demands 
of their congress of embassadors were treated with 
neglect. Jealousies sprang up between the states ; 
complaints were made that burdens had not been 



CONSTITUTION— ITS PREAMBLE. 97 

equally distributed ; and the tendency was to separate 
agiun into their colonial elements. Had tbey thus sep- 
arated, and each maintained an independent existence, 
■with no commanding power to regulate their intercourse, 
the nation would have been dissolved; the elements of 
discord would have been enkindled in their midst, and 
an appeal to some foreign power for protection would 
have been the inevitable result. But had they main- 
tained a separate and peaceful existence among them- 
selves as states, each exercising sovereign authority over 
all sul)jects within its territorial limits, from their indi- 
vidnalweakness, it would have been impossible for them 
separately to have maintained an independent existence 
in respect to foreign powers. They had neither the 
wealth or strength necessary to have provided and used 
the means requisite for national existence or safety. As 
it required a union of all to assert and establish their 
independence, so also it required the continuance of 
that union to defend and maintain it. 

§ 206. As a nation, it was necessary to exercise 
national authority throughout its entire limits. The 
state of Massachusetts and the state of Georgia, as a 
nation, were one. An invasion of the territory of 
Georgia by a foreign force, was the same to the citizen 
of Massachusetts as though Massachusetts territory had 
been invaded. The safety and dignity of the nation 
would be as really threatened by an invasion of one part 
thereof as of another. If there had been a necessity 
upon the colonies, justifying their revolution and the 
establishment of their nationality, that same necessity 
required that it should be maintained and preserved in 
all its vigor and administrative efficiency. As a nation, 
an external and an internal administration of author- 
ity was indispensable. Hence, there were common 
interests both external and internal, to be promoted; 
common dangers to be repelled, and common rights to 
be defended. 

g 207. " To PROMOTE THE GENERAL WELFARE." This 

involves, in general terms, the whole end and scope of . 
government. The general welfare of a people consists 
in the free exercise and enjoyment of their natural and 
acquired rights. And when government shall so provide 
that all men living in society can be protected in such 
exercise and enjoyment, it has provided for the public 
welfare in a very high degree; and when, in addition to 
this protection, it benignly and judiciously extends its 

13 



98 GOVERNMENT. 

aid to foster and encourage every branch of industry 
and art tending to the welfare, happiness and perfec- 
tion of individuals and society, it has provided for the 
public welfare in the highest degree, and accorai)lished 
perfectly the primary and ultimate end of all civil gov- 
ernments. 

g 208. The primary and ultimate end of civil govern- 
ment being to aid and protect the members of society 
in the exercise and enjoyment of all their natural and 
acquired rights, its mission proper is aid and protec- 
tion. Its aid should be so extended as to be available 
to all alike, who put themselves in a i^osition to enjoy 
its benefits, without interfering with the vested rights of 
any. Thus, it can favor business associations by acts 
of incorporation and grants of franchises, by means of 
which many citizens can imite their wealth, talent, 
and enterprise, for the accomplishment of works of 
greater magnitude than individual enter[)rise is compe- 
tent to perform. But in the exercise of governmental 
power for such purposes, great care should be observed 
to guard against the misapplication and abuse of the 
powers granted, to the detriment of individuals or 
society. The objects for which such corporations are 
created, should be the general or public welfare, as well 
as the individual and associated advantages of the cor- 
porators. Such objects may be found in works of 
internal improvements ; in the building of public roads ; 
in developing the resources of the country ; in the 
education of the people ; the promotion of the arts and 
sciences ; or in the general advancement of civiliza- 
tion and Christianity by the various agencies adapted to 
such purposes. 

§ 209. Government can properly be authorized to aid 
individual members of society, as well as society at 
large, by building light-houses, harbors, and by improv- 
ing the navigation of rivers, making safe and convenient 
the reception and transportation of all articles of trade, 
manufacture and commerce. It can and should aid the 
people individually and collectively by establishing jwst- 
offices and post-roads; by providing for the safe and 
speedy transportation of the public mails to and from 
all settled parts of its territory, thus aiding every 
branch of industry, as agriculture, commerce, manu- 
factures, navigation, and every other art or trade at all 
dependant on the speedy distribution of intelligence of 
markets, or general or si)ecial news, or information 



CONSTITUTION — ITS PREAMBLE. 99 

of any character necessary, agreeable or useful to the 
people in their laudable and oi'dinary pnrsuits. It should 
be able, also, to aid society and individuals by promot- 
ing the i)rogTess of science and art ; by securing for 
limited periods, to authors and inventors, the exclusive 
right to their own writings, inventions and discoveries. 
It is the proper business of government to aid all 
departments of industry, by providing a uniform and 
safe currency as a medium of exchange, carefully guard- 
ing against fraud and imposition by counterfeiting or 
otherwise. These and many other like aids the gov- 
ernment could properly be authorized to extend to 
individuals and society, aud thereby really promote its 
general welfare. 

g 210. As the government is instituted and intrusted 
with the exercise of the authority of the people for their 
benefit, as members of society, or, more ai)propriatel3% 
for the benefit of the commonwealth, those intrusted 
with its administration should take care that benefits, 
conferred upon one class or i)ortion of society, are 
not conferred at the exi)ense of another; for govern- 
ment should ever exercise its powers in such a manner 
that thereby many may be benefited and none injured 
in the exercise of their just rights. It is not in the 
province of government to take that which belongs to 
one man aud bestow it upon another, unless the welfare 
of society demands it; and not even then, without 
making just compensation therefor. 

g 211. Government not only may promote the gen- 
eral welfare of society by affording aid to individual 
members thereof as above set forth, but it is also 
required to promote their general welfare by jn'otecting 
them in the enjoyment of their just rights. This is to 
be done by making, and enforcing obedience, to all laws 
necessary to the maintenance of equal and exact justice. 
To do this, government must have jurisdiction over the 
persons and subjects necessary to such an administration 
of its authority. Hence, the constitution, instituting the 
general government, clothed it with authority to exercise 
those powers essential to an efficient administration in 
respect to subjects beyond the jurisdiction of the states, 
and yet vital to the welfare of the people as a nation. 

g 212. The final puri)ose for w^hich the constitution 
was ordained and established — "to secure the blessings 
of liberty to ourselves and our posterity" — is the 
sum of ail the others. Liberty, in its true civil sense, 



100 GOVERNMENT. 

secured to the citizen, is all he can of right deraaiid. 
Civil liberty consists in the free exercise of all the 
faculties and powers beloDgiug* to the individual, essen- 
tial to the continuance and perfection of his being and 
the attainment of a perfect destiny. A government 
that secures to its citizens and subjects the blessings 
of such libertj^, secures all that is essential on its part 
to the perfect destiny of every subject. 

§ 213. Inasmuch as the ultimate object of the people 
of the United States in ordaining this constitution for 
the United States of America, was to secure to them- 
selves and their j)osterity the blessings of liberty, it 
follows that ifc was their design that the government 
thus instituted should be permanent, and should con- 
tinue with their posterity. It was to be a general 
government of the nation, to exercise national authority 
over all subjects committed to its jurisdiction. It was 
ordained and established to secure the blessings of 
liberty in a sense in which the state governments were 
incompetent to the purpose ; in a sense in which the 
state governments were without jurisdiction, and, there- 
fore, could not be employed.^ 

§ 214. The safety and welfare of the nation required 
a government with continuing authority to represent 
the will and i]iQ 'poioer of the nation, on every question 
vital to its interests, whenever and wherever occasion 
should require. It required a government of one mind, 
will and purpose, in the exercise of national authority 
and power ; one that could speak with authority to the 
people* of Massachusetts and Georgia, and make itself 
obeyed ; one that had jurdisdiction on the high seas 
from the northernmost limits of Maine to the utmost 
limits of Georgia; one which, in the pleutitude of its 
authority, could, for all national purposes, obliterate 
state lines and rise above state jurisdictions. In short, 
the nation, from necessity, was instituting a govern- 
ment as the only means of exercising its authority and 
power to save itself, and secure the blessings of liberty 
thereby to the people and to their posterity. 

§ 215. The state governments had not been instituted 
by the authority of any nation, nor for the j)urpose 

1 In all monarchical governments, where the state in all its sovereignty and 
authority is represented by its king, the maxim is -'the king never dies;" by 
whicli is meant, the autliority of the nation is the sani,e, whether tliat author- 
ity be administered by one king or another. The Icing, in a legal sense, is the 
representative of sovereignty. In democratic governments, the same idea 
would be expressed by tlie maxim, "the people never die," or, in plainer terms, 
"the public never die," thereby representing the continuity of national sover- 
eignty in the corporate body of the nation. 



CONSTITUTIOIT — ITS PREAMBLE. 101 

of administering national authority. They had been 
improvised during the revolutionary struggle by the 
people of the respective colonies, who, when they 
renounced their allegiance to the British government, 
were, as communities, without national recognition or 
national relations. These colonies took the name of 
states, not in the sense of nations. Ehode Island and 
the Providence plantations Avere never supposed to be a 
nation, or to have the incidents of nationality, or the 
rights, ijrerogatives and powers of a nation. There 
never was a time when the United States were sup- 
I)osed to constitute more than one nation, although, 
since the revolution, there has never been less than 
thirteen separate and independent states. Prior to the 
institution of the general government by the people of 
all the states, acting in virtue of their inherent author- 
ity as a nation, there was no organized government to 
question the authority of the state governments. All 
agree that the people of Virginia, as a colony or state, 
were separate from, and independent of, all the other 
states or colonies as such ; and so of all the others. So 
that, in respect to each other, as local political govern- 
ments, they were sovereign and independent. But they 
had not, and from their situation never could have, the 
absolute sovereignty and independence of a nation, in 
respect to the people of the United States, by 
whose proclamation and action they had been separated 
from the British crown, and absolved from all alle- 
giance to the British government. The authority of 
the united people constituting the one nation, de facto 
and de jure, including the territory and people of all 
these governments, is the only absolute sovereign 
authority ever known or recognized here. !N'ationality 
was the achievement of all ; and, hence, national sover- 
eignty belonged to all, and could be exercised only by 
those authorized by all to exercise it. And the people 
of the thirteen colonies, in conventions called for that 
purpose, ordained and established this constitution to 
secure the blessings of liberty to all, as members of the 
nation. 

% 21G. Whenever the sovereignty and independence 
of the several states are spoken of in this treatise, it is 
to be understood, that State sovereignty and independ- 
ence is only relative, not absolute ; that is, they are each 
sovereign and independent in respect to the other, but 
not in respect to the nation. The nation alone is 



102 GOVERNMENT. 

absolutely sovereign in its inherent antliority ; and can 
speak from that absolute sovereig'uty, and ordain, in 
respect to these states, whatever it i)]eases; and its 
ordinance, when once recorded as the will of the nation, 
is the supreme law, anything in the constitutions and 
laws of these states to the contrary notwithstanding. 

g 217. In the internal administration of tlie nation, 
these state governments have been preserved., and the 
sphere of their administration has been assigned, in 
which sphere only, they have jurisdiction to act. But 
they can exercise only snch authority as remains to 
them after the nation has assigned to the general gov- 
ernment the sphere of its duties and x)owers. The 
nation as such, in virtue of its inherent sovereignty, 
has authority to transfer to the general government 
jurisdiction over any subject it thinks proper. 

g 218. The people have intrusted the states with .the 
exercise of those powers essential to that i)ortion of 
internal administration which remained after their grant 
of powers to the general government; not because of 
any authority or right on the part of the state to claim 
the exercise of snch jjowers, but because, in matters of 
a local and domestic character purely, the people of the 
state are supposed to know best what the particular wel- 
fare of those interested in such administration demands. 
Such local jurisdiction is committed exclusively to them, 
not from any right they have to govern as states, but 
from the policy and iitness of permitting, as far as pos- 
sible, those whose interests only are affected, to have 
the exercise of the authority to govern themselves in 
that respect.^ 

g 211). B}'- dividing the internal administration be- 
tween the general and state governments, giving to 
each, jurisdiction over such subjects as from the nature 
of things more properly belong to them respectively, 
the democratic principle of self-government is most 
aptly applied, in securing to each and every member of 
the nation the largest amount of liberty, and the high- 
est possible security for the same.. Thus, the general 
and state governments are each institutions intrusted 

I It is a principle in democratic governments to realize, as far as possible, the 
idea of self-government. For this reason, instead of committing the entire 
internal administration to the general government, it ever has been deemed 
most fitting and proper to commit to the people of each state the exercise of 
governmental authority over subjects peculiarly their own, and to the general 
government jurisdiction over such subjects as primarily atfected the welfare 
of the people of the nation. Upon the same principle, the people of the state, 
as far as consistent with the general interests, commit the govern.ment of cities 
and towns to tlae municipality. 



CONSTITUTION— ITS PREAMBLE. 103 

with fbe exercise of tlie sovereign authority of the 
nation, so api)ortioned to each as that those interested 
in any particular subject of administration control it. 

g 220. The system is most admirable. There is but 
one sovereignty absolute, existing in the United States, 
and that is, the sovereignty of the nation. It neces- 
sarily excludes all other sovereignty absolute. But 
there are several institutions within the United States 
intrusted with the administration of this sovereign 
authority over certain subjects committed to them. The 
general government, in administration, is charged with 
the exercise of sovereign authority over subjects com- 
mitted to its jurisdiction. The state government is 
likewise charged, in administration, with the exercise 
of sovereign authority over what remains. But neither 
government ])Ossesses any sovereignty of its own. The 
autJiority to be exercised is that of the people of the 
United States, and those exercising it are ever responsi- 
ble to them. 

g 221. The general and state governments, as admin- 
istrative institutions, are a part of the same national 
system. There is but one authority to be administered, 
although there are divers administrations of such au- 
thority adapted to the subjects thereof. There is but 
one nation, and it possesses and occupies every inch of 
territory, and embraces every subject of government. 
Tlie nation is a unit in being, in mind, in purpose and 
power, unlimited within the national boundaries. The 
agencies by which it: administers are limited to the 
powers committed to them. There is neither consolida- 
ti(m nor division. There is one power over all, with 
limited administrations suited to all. 

S 222. By the national constitution the state govern- 
ments have, in some respects, been ordained as agencies 
in the practical administration of the general govern- 
ment. Thus, the representatives in congress are to be 
chosen by the people of the several states, having the 
qualitications requisite for electors of the most numer- 
ous branch of the state legislature.^ The senate is to 
be composed of two senators from each state, chosen by 
the legislature thereof.^ Each state is to appoint, in 
such manner as the legislature thereof may direct, a 
number of electors equal to the whole number of sen- 
ators and representatives to which the state may be 
entitled in the congress.^ 

1 Const. U. S!, art. 1, 2 2. a Idem, § 3. 3 Idem, art. 2, ? 1. 



104 GOVERNMENT. 

^ 223. But in performing these offices in the practical 
administration of the general government, the states 
act in virtue of the authority intrusted to their exercise 
by the national constitutiosi, and not in virtue of any 
authority inherent in the states themselves. In these 
respects, the states have been constituted national agen- 
cies, to exercise administrative authority in the selection 
of representatives and senators in congress; and also 
in selecting electors for president and vice-president of 
the United States. But all must agree that in these 
respects they act in virtue of delerjatecl, and not of origi- 
nal, authoricy. All must agree that it was competent 
for the people to have vested the exercise of such 
authority in the general government had they thought 
proper to have done so. 

§ 224. The idea of separate original sovereignties in 
the national and state governments, or in the nation 
and states, is an erroneous and dangerous one. The 
anticipated conflict between the two authorities, has 
ever created visions of state and national ruin. The 
only dangers which have seriously threatened the de- 
struction of the nation, and the consequent loss of 
security and liberty to its people, have arisen from this 
erroneous idea of original sovereignty in the states, 
and, consequently, of a natural antagonism of rights, 
interests and authority between two separate original 
sovereignties, occupying the same territory, and embrac- 
ing the same people. 

§ 225. These anticipated conflicts of authority between 
the general and state governments, which have created 
in many minds, serious apprehensions as to the stability 
of these American institutions, are the natural and 
instinctive recognitions of theincompatibility of absolute 
sovereignty in two distinct governments, each occupy- 
ing the same territory, and embracing the same subjects. 
It is the judgment of common sense that the hypothesis 
is in itself an absurdity. 



CHAPTER VII. 

LEGISLATIVE DEPAKTMENT. 

^ 226. At its commencement, the convention, which 
drafted the constitution, while it was in committee 
of the whole on the state of the American union, 
resolved that, in the opinion of the committee, a na- 
tional government onght to be established, consisting 
of a supreme legislative, judiciary and executive.^ The 
convention acted upon this suggestion, and divided the 
internal administration of the government into three 
departments ; committing to one the authority to legis- 
late, to another the authority to adjudicate, and to a 
third the authority to execute the laws.^ 

g 227. These several departments, in the exercise of 
the special powers committed to them respectively, are 
independent of each other, and collectively constitute the 
government ; that is, they exercise all the authority of 
the government for purposes of internal administration 
through their several departments. The government 
can exercise legislative authority only through congress, 
to which the legislative authority of the government is 
committed. It can ascertain and apply the laws only 
through the judiciary, to which the judicial powers of 
the government are committed. It can execute its 
orders, judgments and decrees, or enforce the observ- 
ance of' the laws generally, only through the executive, 
to which department the executive powers of the gov- 
ernment are committed. It is not to be supposed, 
because each department is intrusted with the exercise 
of supremo authority in its appropriate sphere of duty, 
that, therefore, there are three sovereignties, or that 
sovereignty is divided between these three departments. 
The government is intrusted with the exercise of the 
sovereign authority of the people to legislate through 
congress ; to adjudicate through the supreme court, and 
sucii inferior courts as congress shall establish ; and to 
execute the laws through the president of the United 
States. 

\ 1 Lipp. Ell. Deb., 151. , ., ^ ..„, 

2 " All legislative powers herein granted shall vest in a congress of tne uni- 
ted States, which shall consist of a senate and a house of representatives. 

"The executive power shall be vested in a president of the United States of 
America." (Art. 2, ? 1, Const. U. S.) ^ , c,„.r«mA 

"The judicial power of the United States shall be vested in one supreme 
court, and such inferior courts as the congress may from time to time oraain 
and establish." (Art. 3, § 1.) 
14 



108 GOVERNMENT. 

§ 228. Ifc is essential to the perfection of admin- 
istration, that the legislative, judicial and executive 
departments should be independent of each other. The 
proper administration of governmental authority re- 
quires the exercise of the liighest wisdom, the greatest 
X)rudence, the strictest virtue, and the loftiest pariotism, 
to make it what it ouglit to be, as the educating, devel- 
oping, protecting, sustaining and governing power of 
the nation. When it legislates, its laws should be cal- 
caiated to benelic as many as possible, without injuring 
any ; therefore, ifc should have the wisdom and the 
pru;lenc3 to ascertain what laws are needed, and what 
will hi th3 probable effect of those laws in their appli- 
cation to the people they are to govern. The judges 
-who interpret and apply the laws to individuals and 
subjects, should have the wisdom to comprehend them 
in their true meaning and application; to ascertain with 
judicial certainty the occasions of their application ; 
and should be possessed of that integrity which would 
make them blind to ev^ery other consideration than the 
doing of equal and exact justice to individuals and 
society. And he, who executes these laws as ascer- 
tained and applied by judicial determination, or in any 
Other manner required by law, should be ])ossessed of 
firmness of mind, integrity of heart, and kindness and 
humanity of spirit, so that ho become the lit repre- 
sentative of the dignity, the power, and the good will 
of the people, who, in their utmost severity, seek the 
highest good of all. 

g 229. There are many and weighty reasons for sepa- 
rating the authority to be exercised by the gov^ernmcnt 
into thase independent departments. First, the several 
departments are each distinct in their nature, and 
require a distinct class of minds having different quali- 
fiaations, to administer them. The office of legislation 
will necessarily be performed by a changing body of 
men, taken from the various classes of society, to 
administer for a limited time as members of the legis- 
lature. In democratic governments, this is one of the 
essential features of the system. They must come 
from the body of the people, that they may know their 
wants, and be identified with their interests. They 
must return at short intervals to the [)eoi)le, that they 
may be responsible to them. They must be taken from 
the various arts, occupations, trades and professions, 
that all interests may be represented and cared for, to 



LEGISLATIVE DEPARTMENT. 107 

tlic end that laws promotive and protective of each, 
may be enacted. Such, necessarily, must be the g^eneral 
constitntiou and character of the legislative assembly 
in all democratic governments. Farmers understand 
best the interests of agriculture; mechanics under- 
stand best what belongs to their x^articular trade; 
merchants know best what provisions are required 
to facilitate exchange of commodities. Each of the 
learned professions best comprehend their res])ective 
professional interests. But neither farmers, mechanics, 
tradesmen or artists, know best how to frame a law, 
])roniotive or protective of their interests, without inter- 
fering or injuriously affecting others. There will be, in 
the legislative assembi}', legal minds accustomed to the 
forms of legal definition and expression; there will be 
statesmen who can comprehend the general scoi)e and 
effect of any particular law proi)osed, and they will aid 
in embodying the ideas of the various members repre- 
senting the various interests, in legal form, with suitable 
restrictions and limitations, so that the laws enacted 
may do much good and no harm. 

g 230. But these legislative assemblies are composed 
of men often influenced by particular interests; subject 
to be controlled by combinations which unite many 
separate measures for the purpose of securing a mnjor- 
ity for each ; and in many ways they are influenced to 
act hastily, from impulse, interest, jmpular excitement 
and the like, which tend to defeat the exercise of that 
wisdom, prudent foresight and calm judgment, so essen- 
tial to correct legislation for the welfare of individuals 
and society. For these and similar causes, laws enacted 
by legislative assemblies are not always wise and just; 
do not always tend to the well-being of society. Some- 
times they are in violation of the fundamental princii)les 
of justice. If laws thus enacted were to be adjudicated 
and applied by the same body, subject to the same influ- 
ences and impul-ses ; controlled by the same interests, 
the well-being of individuals and society would be in 
great danger; and the government, instituted to foster 
and protect the best interests of societ}^ would become 
its most dangerous oppressor. 

§ 231. The constitution of the judicial office, and the 
requisite character and condition of the judges are very 
ditferent. The judges are selected from a class of men 
familiar with the principles by which rights are to be 
determined, and justice to be ascertained and applied. 



108 GOVERNMENT. 

By a long course of studying the constitution and laws, 
they acquire a knowledge and discipline suited to 
accurate determination. In practice, the judge is not 
allowed to sit in cases where he has even the remotest 
interest; or is within the ninth degree of consanguinity, 
or in any manner akin to either party. By his position 
as a judge, he is removed from all excitement or popu- 
lar influence, and in the discharge of his duty he has 
only to ascertain the facts and apply the law thereto ; 
but in all other respects, as the symbol of justice, he is 
required to be blind. 

g 232. 8uch being the constitution of the legislative 
and the judicial departments respectively, and such the 
characters and qualifications of their respective mem- 
bs^rs, it cannot be doubted, that the interest of all 
requires them to be thus separated and made independ- 
ent each of the other. Then should the legislature enact 
a law obnoxious to the principles of justice as secured 
by the constitution, it would be powerless for mischief. 
Before such law could be enforced, it would necessarily 
be subject to the strictest scrutiny of learned and 
impartial judges, authorized to examine into its validity 
and pronounce upon its constitutionality; required to 
ascertain judicially the existence of facts demanding its 
application; and the deliberate and impartial judgment 
of the court in respect thereto. 

§ 233. The same considerations calling for the sepa- 
ration and independence of the legislative, judicial and 
executive departments, also require that the legislature 
itself should be separated into two distinct branches.^ 
One branch comes directly from the people, and repre- 
sents them in all their various rights and interests. It 
is emphatically the popular branch of the legislature, in 
which the people speak from every trade, occupation, 
profession and interest. It is the most numerous branch, 
coming from and returning to the people every two 
years, that it may ever be fresh from their presence. 
This branch is democratic in an eminent degree ; and is 
characterized by the universality of the interests of 
society represented by it, rather than by its wisdom and 
discretion in such representation. It is better fitted for 

1 " The house of representatives shall be composed of members every seconri 
year by the people of the several states; and the electors in each state shall 
have the qaalifications requisite for electors of the most numerous branch of 
the state legislature." (Art. 1, § 3, Const. U. S.) 

" The senate of the United States shall be composed of two senators from 
each state, cliosen bytlie legislature thei-eof, for six years; and each senator 
shall have one vote." (Art. 1, § 3, Const. U. S.) 



LEGISLATIVE DEPARTMENT. 109 

proposing subjects for legislative action than for matur- 
ing legislation upon those subjects. Experience has 
demonstrated the utility of adding another body as a 
branch of the legislature, distinguished more for its 
wisdom, gravity and prudence, than for its numbers, 
nearness to, or freshness from, the body of the people. 
This is considered the aristocratic branch, designed as a 
check upon the hasty, immature and indiscreet legis- 
lation, of the more popular branch. In one sense the 
senate is figuratively composed of the honored fathers 
of the nation, -while the house consists of the sons 
thereof.^ 

§ 234. In the legislature thus constituted, it is expected 
that the assembly or house of representatives will rep- 
resent the people in their individual and social interests; 
will pro[)ose all necessary measures to secure them in 
the exercise and enjoyment of their respective rights ; 
and that the respective members will, according to their 
wisdom and ability, be faithful to their particular con- 
stituencies. It is expected that the u[)per house or 
senate will more particularly represent the M'isdom, 
prudence, discretion and dignity of the state or nation, 
in the exercise of its legislative authority. In its con- 
stitution it does not profess to be democratic ; it was 
instituted as a check upon the centrifugal tendencies of 
the extreme democracy of the house of representatives, 
and it is one of its particular offices to bring to the test 
of wisdom and prudence, the enactments of the other 
house.^ The senate is composed of two from each state, 
who are elected by the legislatures of their respective 
states, and hold their otfice for the term of six years. 
As a governmental body it never ceases to exist, but the 
house of representatives is renewed every two years.^ 

I "The person appointed" to the senate "must be at least thirty-flvo j^ears 
of age, have been a citizen of the United States nine years, and at the time of 
his election, lie must be an inhabitant of the state by which he shall be cliosen. 
The senatorial trust requiring great extent of information and stability of 
character, a mature age is requisite; participating immediately in some of the 
transactions with foreign nations, it ouglit to be exercised by those %vho are 
thoroughly weaned from the professions and habits incident to foreign birtli 
and education. The terra of nine years is a reasonable medium between total 
exclusion of naturalized citizens, whose merits and character may claim a 
share of public confidence, and an hasty admission of them, wliich might pos- 
sibly create a channel for foreign influence in the national council." (Rawle on 
the Constitution, p. 32; Federalist No. G2.) 

'-' The senate forms a great check upon undue, hasty and oppressive legisla- 
tion. Public bodies, like private persons, are occasionally under the dominion 
of strong passions and excitements ; impatient, irritable and impetuous. * * 
Certain popular leaders often require an extraordinary ascendency over the 
body, by their talents, their eloquence, their intrigues or tlieir cunning. 
Measure's are often introduced in a hurry, and debated with little care, and 
examined with less caution." (Story's Com. on Const., i 550.) 

3 " A good government implies two things: fidelity to the objects of the gov- 
ernment; secondly, a knowledge of the means by which those objects can be 



110 GOVERNMENT. 

§ 235. The institution of the senate as a branch of 
the le<>islatui'e, con}posed, as ic is, of members removed 
from the direct influence of the peoi)le, representing 
society at large rather than particular individuals or 
districts, with their personal and local interests and 
influences, is an expression of the deliberate judgment 
of the nation, that it is unwise and unsafe to intrust 
the exercise of the law making power to the exclusive 
direction and control of a popular assembly. That 
there are times when the people, like individuals, require 
to be protected from their own indiscretions. Although 
tlie majority are usually under the control of benevo- 
lence and good intentions; yet they are liable to 
transgress; and there should be i)ro visions suited to 
such emergencies^ 

S 23G. Both the senate and house of representatives 
are composed of citizens of the United States, who are 
themselves subject to obey the laws of their own enact- 
ing ; and while the office of legislature as a department 
of government, is permanent, those who administer 
therein, remain in office only for a limited period, when 
they are succeeded by others. It is not to be supposed, 
therefore, that as a legislative body, they will seek to 
accumulate power in their own hands; for as members 
of that body, it could inure to their benefit but for a 
short period ; and would operate to their disadvantage 

best attained. It was suggested that in the Araerican government too little 
attention had been paid to the last; and tliat the establishment of a senate 
upon a proper basis, would greatly increase the chances of fidelity, and of wise 
and safe legislation. What, it was asked, are all the repealing, explaining and 
amending laws, which fill and disgrace our voluminous codes, but so many 
monuments of deficient wisdom; so naany impeachments exhibited by each 
succeeding against each preceding session ; so many admonitions to the people 
of the value of those aids which may be expected from a well constituted sen- 
ate." (Story's Com. on Const., ^ 561.) 

" A senate duly constituted would not only operate as a salutary check upon 
the representatives, but occasionally upon the people themselves, against their 
ov/n temporary delusions and errors. The cool, deliberate sense of the com- 
munity, ought in all governments, and actually will in all free governments, 
ultlm.ately prevail over the views of their rulers. Bat there are particular 
moments in public affairs, when the people, stimulated by some irregular pas- 
sion or some illicit advantage, or misled by the artful misrepresentations of 
Interested men, may call for measures which they themselves will afterward 
be most ready to lament a,nd condemn. In tliese critical moments how salu- 
tary will be the interference of a body of respectable citizens, cliosen witliout 
reference to the exciting cause to check the misguided career of public opinion 
and to suspend the blov/ until reason, justice and truth, can regain their 
authority over the public mind." (Idem, g 568: Federalist No. 63.) 

1 " John Adams in his defense of the American constitution, letter 6, pp. 215, 
216, holds this language : ' If we should extend our candor so far as to own that 
the majority of mankind are generally under tlie dominion of benevolence and 
good intentions ; yet it must be confessed that a vastmajority frequently trans- 
gress; and what is more decidedly in point, not only a majority, but almost 
all, confine their benevolence to their families, relations, personal friends, 
parish, village, city, county, province; and that very few indeed extend it 
impartially to the whole community. Now grant but this truth and the question 
is decided. If a majority are capable of preferring their own iirivate interests 
or that of their families, counties and party, to tliat of the nation collectively, 
some provision must be made in the constitution in favor of justice, to compel 
all to respect the common right, the public good, the universal law, in prefer- 
ence to all private and partial considerations." 



LEGISLATIVE DEPARTMENT. HI 

as citizens both while in office and also after their term, 
had exi)ired. 

% 237. There are many weighty reasons for instituting 
this independent body as a branch of the national legis- 
lature, unnecessary to be considered in this place. It 
has been, and is claimed that the senate particularly 
represents the interests of the several states as such, 
and stands as a shield between the people of the nation, 
or of the government they have instituted, and the 
respective state governments. The soundness of this 
position is not readily perceived. It seems to assume 
that the state governments are in danger of being 
invaded by the people of the nation, because of some 
natural incompatibility between the state and nation ; 
and that the state, being small and weak compared with 
the nation, needs to be protected by a council of semi- 
embassadors in the persons of the senators of the 
United States. This hypothesis has no real foundation 
in fact. Every national citizen is likewise a state citizen ; 
and national and state interests are so interwoven in 
each citizen, that he is equally interested in maintaining 
the just authority of each government. The national 
government is as much his own as the state govern- 
ment, created in the same manner, by the same authority 
and for the same general purpose. It difiers in the 
subjects and in the extent of its jurisdiction, in the same 
degree that the subjects of national welfare differ in 
their nature and extent from the more local affairs of 
the state. The powers to be exercised by the general 
government are i)articularly specified in the grant, while 
those to be exercised by tbe states are merely described 
as the powers, not granted, &c. 

§ 23S. The general and state governments are a part 
of one and the same system, instituted by one and the 
same i)eople, having one and the same general duty 
to perform for the people. Every national citizen is 
necessarily connected with business and interests of a 
domestic character; and there is but one class of insti- 
tutions in this country that can administer to his 
necessities in respect to those subjects. That branch of 
internal administration is by common consent, as well 
as by particular regulation, committed to state admin- 
istration. And the state governments are as absolute 
in the exercise of their authority within the limits of 
their respective jurisdictions, as is the general govern- 
ment within its particular sphere ; and every national 



112 GOVERNMENT. 

citizen is as rnucli interested in preserving intact the 
jui'isdiction of the several state governments as he is 
that of the general government. Therefore, the idea 
of danger of encroachments of national power npon 
state authority, is without any foundation in philosophy 
or fact. If there is any danger of encroachment by 
one government upon the jurisdiction of the other, that 
danger is to be found in the local and petty disposition 
of the states to assert and maintain authority over sub- 
jects affecting the nation at large. All real danger to 
the welfare of the people, hitherto experienced, has come 
from that source. 

§ 23D. But it is no part of the constitutional duty 
of the senators of the United States to represent the 
political rights and interests of their particular state 
gavernments as political institutions; nor can they do 
so practically, because the state governments have no 
political interests or rights separate from the people, to 
be represented in the general government or elsewhere. 
The senate have no special jurisdiction in respect to the 
local interests of the several states, and no special 
duties to perform in respect to them. The senate is a 
branch of the national legislature, and was so consti- 
tuted for the greater security of the people of the nation 
at large, and not of the states in particular. 

§ 240. The manner in which the senate is constituted, 
proves that it is not designed to be strictly a representa- 
tive body. The number of senators to which the people 
of a state are entitled nnder the constitution, has no 
reference to the population of the state. Delaware, 
Avith her three counties and a population of one hun- 
dred and twelve thousand, has as potent a voice in the 
senate of the United States as New York with her four 
millions. The people of Delaware and the people of 
New York are represented in the house of representa- 
tives in proportion to their respective population ; and 
representation extends only to the house. The senators 
are elected by the state legislatures, not to represent the 
people of the state as national constituents, but to rep- 
resent the wisdom, prudence, foresight and dignit}?- of 
the state, in a department of the general government 
where the legislative action of the immediate represent- 
atives may be brought under their examination and 
review before it becomes binding as law.^ 

1 As legislation may act upon the whole community, and inyolve interests 
Of vast difficulty and complexity, and require nice adjustments and compre- 



LEGISLATIVE DEPARTMENT. 113 

§ 241. The house of representatives is composed of 
members chosen every second year by the people of the 
several states; and they are elected by those citizens 
who have the qnalitications requisite for electors of the 
most niunerons bi-anch of the state legislature.^ In 
the internal administration of government, the general 
and state governments are a part of the same system ; 
and, consequently, the same reasons for dividing the 
legislatures into two in<lependent branches, apply as 
well to the state as to the general government. Thus 
tile states have their senate and house of represent- 
atives, making the former aristocratic in structure, and 
the latter more democratic. Tiierefore, the rei)resent- 
ative branches of the legislature in the national and 
state governments, are comi)osed of men elected by a 
constituency of their respective states, having the same 
electoral qualifications. 

§ 242. By this provision of the constitution the peo- 
]>le have committed to the state governments respect- 
ively, the authority to determine the qualifications 
requisite for a national elector, by first prescribing the 
qualifications essential for an elector of the inost 
numerous branch of the state legislature. There are 
substantial reasons why the qualifications of a state 
and national elector should be the same. But it may 
well be doubted whether they are sufficient to justify 
the nation in putting its citizens in that respect, under 
the exclusive authority of the state governments. 

§ 243. Every national government should be intrusted 
with the exercise of authority to determine what quali- 
fications are essential to entitle any class of its citizens 
to participate m the administration of its authority. 
The general government in its jurisdiction and by its 
authority, embraces every citizen within its territorial 
limits ; its laws are equally binding ui)on all, and all 
are required to bear a part of the same general burdens 
in its su[)port ; therefore, it is but just that the same 
classes of citizens througliout the several states, should 
enjoy equal rights in the exercise of administrative 

hensive enactments, it is of the greatest consequence to secure an independent 
review of it by difterent minds, acting under diflerent opinions and feelings, 
so that it niay be as perfect as Imman wisdom can desire. An appellate juris- 
diction, therefore, that acts and is acted upon alternately in the exercise of an 
Independent revisory authority, must have the means, and can scarcely fail to 
possess the will, to give it a full and satisfactory i-eview. (See Story's Com. 
Const., g 557.) 

1 " The house of representatives shall be composed of mernbers chosen every 
second year by the people of the several states; and the electors in each state 
shall have the quaiiflcations requisite for electors of the most numerous branca 
of the state legislature." (Art. 1, J 2, Const. U. S.) 
15 



114 GOVERNMENT. 

authority. This can be secured only by uniform laws 
of enfranchisement and disfranchisement throughout 
the nation. 

% 244. The right to participate in the institution and 
administration of civil government, is herein denomi- 
nated political, as distinguished from the civil rights of 
meinbers of society.^ These two classes of rights are 
essentially difierent in their origin, and in their appli- 
cation to individuals. Civil rights are incident to the 
individual, derived with his existence, and essential to 
his continued well-being and ultimate destiny. These 
are the rights of the individual referred to in the declar- 
ation of independence in these words, " We hold these 
truths to be self-evident, that all men are created equal, 
and endowed by their Creator with certain inalienable 
rights, among which are life, liberty and the pursuit of 
happiness." Political rights are such as pertain to the 
individual as a member of political society, and have 
their origin in society, and can be exercised by those 
only who expressly or impliedly are authorized by 
society to exercise them. In short, civil or natural 
rights are inherited, political rights are acquired. The 
former are the gift of God to man, and are inalienable ; 
the latter are the gifts of society to man, and may be 
forfeited when their continuance becomes incompatible 
with the safety and well-being of society. Hence the 
right of voting is called a franchise — some right con- 
ferred by government upon the individual, which he did 
not before possess ; and the individual thus acquiring 
the right, is said " to be enfranchised." 

g 245. Political rights have their origin in the neces- 
sity for a government by which the public authority 
must be exercised; which necessity is ever present with 
society. And these rights are to be exercised in the 
institution and administration of government as a social 
necessity. They belong to society, and not to the indi- 
vidual ; as the individual can neither possess or exer- 
cise them except in society and as a member thereof. 
These political rights, or, more properly speaking, 

1 1 prefer to use the term civil rights in such a sense as to embrace the natu- 
ral rights of the individual as defined. (Ante, ?§ 40, 41 and notes.) I denominate 
the right to participate in the institution and administration of government 
political, because it has its origin in political necessity. The right to vote is 
a political right, because voting is a governmental act ; and the individual who 
exercises that right, participates in the government of others as well as of 
himself. This right to participate in the administration of government, by 
which the public welfare is to be afiected, and the public interests are to be 
controlled, must, necessarily, come from the public. Hence, the exercise of 
this right must be confined to such classes as are deemed by the public worthy 
to be intrusted with its safety and welfare. 



LEGISLATIVE DEPARTMENT. 115 

powers, to be exercised by the individual as a member 
of an enfranchised class, are intrusted to him, primarily 
for the benefit of society ; and, secondarily, through 
the well-ordered state of society, for the benefit of all the 
members thereof. Hence, government, as the author- 
ized agent of society, confers the exercise of political 
franchises upon such classes of individuals as is consist- 
ent with public safety and welfare. 

§ 246. In the organization of government, those 
members of society by whom it must be instituted and 
administered to become the government of society, have 
a natural right to exercise the powers necessary for 
such purpose ; which right has its foundation in natural 
necessity. Those members of society whose intelligence 
must frame the governmental structure; whose strength 
must defend its existence, and whose means must sup- 
port its administration, by their majority have the 
natural provisional authority to determine for society 
by whom political power shall be exercised in the insti- 
tution and administration of the government. This 
provisional authority belongs to this class from neces- 
sity, because it cannot be possessed and exercised by 
any other as a class. It belongs to the majority of this 
class, from the same necessity, because it cannot be 
exercised by a minority of them, and to require a greater 
number than a majority would be impracticable. The 
right to exercise this political authority belonging to 
societ}^ as essential to its existence and well-being, it is 
a duty which society owes to its individual members to 
enfranchise those classes only who will be likely to exer- 
cise the authority for the good of society, and through 
it, for the welfare of the members thereof. 

S 247. The question of political enfranchisement must 
be addressed to the enlightened and honest discretion 
of those intrusted with the exercise of public authority. 
Manifestly, the welfare of society will not permit uni- 
versal enfranchisement. There must be discriminations 
based upon competency, discretion, common prudence, 
&c., for it is to be remembered that whoever is enfran- 
chised, is intrusted with the exercise of a power which 
can be directed to the subversion of society, as well as 
to its improvement and well-being ; and government 
would be guilty of a wrong, not only to society at large, 
but to those wrongfully enfranchised, should it intrust 
the exercise of political power to a class who would use 



116 GOVERNMENT. 

it so ignorantly or so corruptly as to endanger tlie well- 
being of society. 

g 248. The most democratic governments, in tlieir 
practical operations, are obliged to observe these priuci- 
Ijles. The law necessarily has determined the period 
of legal discretion at which legal infancy terminates. 
Those intrusted with the exercise of legislative authority 
are obliged to fix the period at some age ; not because 
there is, in fact, an exact i)eriod of age at which all 
become discreet, and before which none become so; but 
because there is an average age which it is supposed 
embraces more, and excludes less, discreet persons than 
any other; it is, therefore, fixed upon as the period 
of legal majority ; and is made one of the necessary 
qualifications for political enfranchisement. The neces- 
sary possession of this discretion on the part of those 
intrusted with the exercise of governmental authority, 
demonstrates the position that political rights do not 
pertain to the individual as being natural and inherent. 
Thus, every democratic government prescribes the qual- 
ifications essential to the exercise of these rights, and its 
duty to society and to the individual members thereof 
requires that it should do so. The exercise of the elect- 
ive franchise requires judgment, prudence, discretion, 
integrity and loyalty in selecting persons suitable to 
administer in the several departments of government. 
Hence, classes characterized as not possessing compe- 
tency, as idiots and insane persons ; as not possessing 
discretion, as infants ; as not being loyal, as traitors ; 
are necessarily excluded from the exercise of the voting 
franchise. So, also, persons convicted of crimes against 
society are, in most states, by such conviction and judg- 
ment,' divested of such right. It is requisite as an act 
of prudence, and of safety to the public, that those who 
will exercise this power to the detriment of society 
or government, should not possess it. Hence, rebels 
against government, traitors, or those in sympathy with 
them, are nntit persons, as a class, to be intrusted 
with the exercise of thi3 political franchise. 

g 249. Political rights belong to society as an inci- 
dent of its existence ; and they are to be exercised 
only in the manner society, by its fundamental law, or 
through the agency of its government, shall ordain. It 
has the absolute discretion to determine to what classes 
of individuals the exercise of political rights shall be 
committed ; and it can limit its exercise to persons pos- 



■ LEGISLATIVE DEPARTMENT. 117 

sessing any particular qualification, and can determine 
at pleasure wbat shall amount to disqualification. It 
has authority to limit its exercise to persons of a certain 
a<;e, sex, race, color, character — in short, to any quali- 
fication it deems discreet, prudent, wise, just and safe to 
adoi)t.^ Disloyalty in sentiment, and particularly in 
conduct, amounting to treason, are j)eculiarly natural 
disqualifications for the exercise of the i)oliticaI fran- 
chise ; and no society or government which permits 
disloyal classes to i)articipate in the administration 
of government is faithful to the commonwealth. Xs 
qualification or disqualification extends to class, and not 
to individuals, except through the class to which they 
belong, the individual can have no vested rights in the 
exercise of a political franchise ; and, therefore, cannot 
require judicial determination to invest him with, or 
to divest him of, the power to exercise such rights. 
Whether he belongs to the enfranchised or disfranchised 
class is a question of fact, which belongs to the inspectors 
of election to decide at the polls, when the individual 
presents his ballot.^ 

§ 250. Political rights belonging to society as incident 
to its governmental necessities, they are conferred ou 
classes with sole reference to their qualifications as 
members of society, for maintaining by their votes, the 
healthy and just administration of the government. 
Political rights are not conferred on individuals, except 
as members of an enfranchised class ; nor are they 
denied to individuals, except as members of an unen- 
franchised class. The individual convicted of a crime 
and sentenced to suffer the penalty affixed thereto, 
according to the law in some of the states, thereby 
becomes a member of a disfranchised class, and, con- 
sequently, becomes himself disfranchised. 

g 251. Government disfranchises only by classes. It 
is ev^er in the power of society to determine to what 
classes the exercise of this power shall be committed, 

1 In no two of the state constitutions will it be found that the qualifications 
of tlie voters are settled upon the same uniform basis. There is tlie most 
abundant evidence that among a free and enliglitened people, convened for 
the purpose of establisliing tlieir own forms of government and tlie rights of 
their own voters, the question as to the due regulation of the qualifications, 
has been deemed a matter of mere state policy, and varied to meet the wants, 
to suit the prejudices, and to foster the interests of the majority. An absolute, 
indefeasible right to elect, or to be elected, seems never to have been asserted; 
but the subject has been freely canvassed as one of mere civil polity, to be 
arranged upon such a basis as the majority may deem expedient with refer- 
ence to the moral, physical and intellectual condition of the particular state. 
(Story's Com. on Const., § 582; also Dr. Lieber's Encyclopedia Americana, Art., 
Const. U. S.) 

2 The subject of the political rights of individuals and of states will be fully 
discussed in. a subsequent chapter on state governraents. 



118 GOVERNMENT. 

and to what classes it sliall be denied. And in deter- 
mining these questions, the highest good of society is 
ever to be kept in view ; and such classes only should 
be enfranchised as from their average competencj^ dis- 
cretion, prudence, foresight, integrity and virtue, would 
justify the expectation of benefit to the general welfare, 
should the exercise of political power be committed to 
them as a class. And upon the same principle, it 
becomes the duty of government or society to disfran- 
chise, or leave unenfranchised, classes whose average 
competency, discretion, prudence, foresight, integrity 
and virtue would justify the expectation that, to enfran- 
chise or leave enfranchised such class, would tend to 
subvert society or prove detrimental to public interests 
and the general welfare. This question necessarily 
belongs to government to decide ; and it rests in its 
discretion, from which there is no appeal, except to 
society at large, to determine by its fundamental law 
the political rights and powers of classes. 

g 252. As government enfranchises only by class, it 
never becomes a question of individual right to enfran- 
chisement, or of individual merit, but of class right and 
class merit. The class of legal infants would furnish 
many individuals endowed with sufficient discretion, 
judgment and prudent foresight to justify the govern- 
ment in intrusting them with the exercise of political 
rights ; but the government cannot entertain the ques- 
tion of individual qualification or merit in distributing 
that which belongs to class, because it necessarily 
becomes impracticable for it to do so. 

g 253. As political rights belong to, and are the neces- 
sary incidents of every political society, and are to be 
exercised only for the political welfare of such society, 
there are certain classes in society, or may be such, as, 
from the nature of things, must remain unenfranchised, 
or must become disfranchised. Thus, society cannot with 
safety enfranchise any but its own citizens ; hence, for- 
eigners, legal aliens necessarily remain unenfranchised. 
There may be individuals of the class competent, both 
from intelligence and love of country, to exercise the 
franchise in such a way as to benefit the public ; but 
the class, notwithstanding, must remain unenfranchised. 
The individual, to gain enfranchisement, must leave the 
class and gain admission to one that is enfranchised. 
So, also, a class of malcontents may rise up in rebellion 
against the government and attempt its overthrow. In 



LEGISLATIVE DEPARTMENT. 119 

comraittiug the crime of treason, they become traitors ; 
which class, from the nature of thiugs, must be disfran- 
chised. The public sense revolts from that logic which 
attempts to prove, upon constitutional grounds, that a 
class seeking to destroy government are to be intrusted 
with its administration. Treason, in all countries and 
under all governments, is political death; and no one 
belonging in the class traitor, has any political life or 
power. 

^ 254. Political rights, having their origin in the social 
necessity for maintaining government, they belong only 
to those classes of society who are faithful to that end. 
No one can claim enfranchisement on personal grounds. 
When a member of an unenfranchised class asks for 
personal enfranchisement, he must be prepared to satisfy 
the public that not only he is qualified to exercise the 
franchise, but also that his class is likewise qualified ; 
and he must be prepared to abide the political fate of 
his class, or leave it. 

S 255. From these considerations, it cannot be doubted 
that every national government should possess the 
power requisite to determine the qualifications essential 
to entitle its citizens to participate in the exercise of its 
administrative authority. The principles of self-preser- 
vation, as well as of a healthy and vigorous adminis- 
tration, require it. No government can secure fidelity 
in its administration without such power. Therefore, in 
this respect, the constitution requires amendment ; and 
by such amendment, the question of national enfran- 
chisement would be committed to the general govern- 
ment, where it properly belongs.^ 

§ 256. The legislative authority of the nation, to be 
exercised by the general government, is committed 
exclusively to congress, which is to be composed of a 
senate and a house of representatives. The members 
of the house are to be elected by the people of the 
several states, having the qualification of electors of 
the most numerous branch of the state legislature. The 
senate is to be composed of two from each state, who 
are to be elected by the state legislature.^ 

1 See a further discussion of tliis subject in a subseqent chapter on the duties 
and powers of the state governments. 

TT^u^y2,f''l'''^"''*',P'^.^®.''^/?®''®'"-Sr^'^ted shall be vested in a congress of the 
/ A^t 1 ^V'^ n*' '^^i^V^'^l'^^l ,^°^,sist of a senate and a house of representatives. 
(Art 1, ^1 Const. U. b.) 1 he house of representatives shall be composed of 
mernbers chosen every second year by the people of the several states' and the 
electors in each state shall have the qualifications requisite for electors of 
the most numerous branch of the state legislature. (Art. 1, ? 2, id.) The 
senate of tlie United States shall be composed of two senators from each state, 



120 GOVERNMENT. 

S 257. The primary object of tlie people of the United 
States in ordaining and establishing the constitution, 
was to institute a government, independent and com- 
plete in every department thereof, to which the exercise 
of their authority to govern in certain matters mighc 
be committed. As a department of that government, 
a supreme legislature became indispensable ; which 
body the constitution requires to be composed of two 
branches, and the members of each branch to have 
certain specified qualifications, and to be elected by cer- 
tain ])rescribed constituencies. But the times, places 
and manner of holding the elections are, by the consti- 
tution, made subject to the regulation and control of 
congress, except as to the place of choosing the sen- 
ators. ^ 

.§ 258. The propriety of making the times, places and 
manner of holding these elections subject to the regu- 
lation and control of congress, rests upon the plain 
proposition, that every government ought to contain in 
itself the means of its own preservation. The exclusive 
power in the state legislature to regidate and control 
elections of members of congress, would leave the 
continued existence of the government of the nation 
at the mercy or pleasure of the states. They could 
destroy the legislative branch of the government by 
neglecting to provide for the election of members to 
administer in that department, and thus effectually 
subvert the general government. It is no answer, to 
say that such an abuse of power is not probable. Its 
possibility is a sutificient reason for providing against 
the happening of such an event. But the same danger 
would threaten the legislative department of the gov- 
ernment, should the state legislatures refuse or neglect 
to choose senators according to the requirements of rhe 
constitution. It can hardly be doubted that the people 
of the nation, when they imposed a duty upon a sub- 
ordinate institution, the exercise of which they made 
essential to the continuanceof the government ordained 
and established for themselves and their posterity, that 
they, expressly or impliedly, gran ted thex)0wer toenforoe 
the performance of such duty. 

g 259. The constitution provides that the senate shall 
be composed of two senators from each state, chosen 

clao'jen by the legislature thereof, for six years, and each senator shall have 
one vote. (Art. 1, g 3, id.) 
1 Art. 1, 2 4, Const. U. S. 



LEGISLATIVE DEPARTMENT. 121 

by the legislature thereof; that if vacancies happen 
dnriiig" the recess of the legislature, the state executive 
iiiny make temporary appointments until the meeting 
of the legislature, which shall then fill such vacancies.^ 
But, supposing, from a factious spirit in the state legis- 
lature, or from other cause, there should be a neglect or 
refusal on the part of this national agency to do its 
duty in this respect, seeking thus to subvert the general 
government by aiming at the destruction of the legis- 
lative department thereof, is there not in the general 
government legislative, judicial and executive authority 
sufficient to require the performance of a duty so vital 
to the safety and welfare of the nation ? Here is a 
duty to be performed, imposed by the national consti- 
tution upon the incumbents of an office, who have 
sworn to obej^ it as the supreme law ; and the perform- 
ance of which duty is vital to the existence of the nation 
as an organized and potential body. The performance 
of this duty is enjoined upon this ottice by the sovereign 
authority of the nation itself And that this authority 
might compel obedience to its requirements, the nation 
created a supreme legislative office, a supreme jiulicial 
office, and a supreme executive office, and made that 
constitution, and the laws made in pursuance thereof, 
the supreme law, anything in state constitutions and 
state laws to the contrary notwithstanding. Here, then, 
is a constitutional duty to be performed by a body of 
officers bound by oath to its performance. Here is a 
supreme judiciary invested with full jurisdiction, which 
extends to all cases in law and equity, arising under 
this c(mstitution, and the laws of the United States 
made in pursuance thereof. Here is a supreme legisla- 
tiu'e empowered to make all laws necessary and proi)er 
for carrying into execution the ])owers conferred by the 
constitution upon the government, or upon any depart- 
ment thereof. Therefore, it cannot be doubted that 
there is sufficient authority vested in the several depart- 
ments of the general government to compel the per- 
formnnce of any duty enjoined by the constitution of 
the United States upon any office or officer, state or 
national. 

g 2G(). It is no answer to say that the members of the 
legislatures are not officers of the nation, and are not 
amenable to national authority. The state government 
exists and administers by permission of the nation. It 

1 Art. 2, § 3, Const. U. S. 

16 



122 GOVERNMENT. 

has jurisdiction over no subject which may not be taken 
froui it at the pleasure of the nation. It can administer 
only in respect to those subjects left to it by the people 
of the nation. The form of its administration is subject 
to the supervision of the general government ; and no 
one can administer in any of its departments without 
first taking an oath to support, in his administration 
as such oiiicer, the constitution of the United States. 
Every requirement of the national constitution is the 
supreme law, by which they are to be governed, whether 
as officers or private citizens. Every duty thereby 
enjoined upon them is supremely obligatory, and may 
be enforced by proper authority, indepeudent of the 
constitutional or legislative authority of the state. 
Therefore, it is not true, that state officers are not 
amenable to national authority in respect to duties 
imposed upon them by the constitution of the United 
States. In respect to such duties they are charged with 
the execution of a national trust — one which they can 
execute only by national authority ; and for the faithful 
performance of such trust they are responsible to the 
nation. 

S 261. The necessity calling for the institution of the 
general government to exercise the authority of the na- 
tion in respect to matters committed to its jurisdiction, 
required that the government thus instituted should be 
indepeudent of all other governments in maintaining 
its existence and administering the authority committed 
to it. It would have defeated the end of its institu- 
tion to have made it, in the administrative authority of 
any of its departments, subject to an adverse will, 
which might, at pleasure, disorganize its existence or 
arrest its constitutional action. It is not, therefore, to 
be supposed that the people, in the institution of the 
general government, intended to make its continuance 
or efficiency dependent upon the will of local govern- 
ments, by giving to these governments the authority to 
act as the agents or instruments of the nation in certain 
departments of governmental administration. It was 
the purpose of the j)eople to institute a government, 
having a supreme legislature, a supreme judiciary, and 
a supreme executive to administer for the nation, exter- 
nally and internally in respect to all subjects committed 
to it. Such was the end sought, and such the reason 
and si)irit of its institution. 



LEGISLATIVE DEPARTMENT. 123 

g 2G2. Therefore, while the constitution commits to 
the states the authority to determine the qualifications 
requisite for electors of members of the house of repre- 
sentatives, by identifying them with those having the 
qualifications requisite for electors of the most numerous 
branch of the state legislature, it has left witli congress 
the authority to prescribe by law the time and place 
of holding, and the mode of conducting the elections of 
such members ; and has given to the general govern- 
ment authority to enforce the constitutional guaranty 
of a republican form of government to each of the 
states ; so that the authority of the general government 
can be used to provide for the election of members to 
the house, should the state, as a political institution, 
neglect or refuse to do its duty in that respect. For 
while the state continues republican in form, there must 
be a class of its citizens having the qualifications requi- 
site for electors of the most numerous branch of its own 
legislature ; and those electors, or such of them as think 
proper, can return members to the house of representa- 
tives under such regulations as congress may find it 
necessary to prescribe. And should a state legislature 
neglect or refuse to elect a senator according to the 
command of the constitution, which is the supreme law 
of the state, and which by their oaths they have under- 
taken to support and obey, it cannot be doubted that, 
under the constitution of the United States, there is 
sufficient authority and power in the supreme legis- 
lative, judicial and executive departments to compel 
obedience. The nature of this remedy will be con- 
sidered when the state governments, together with their 
source, authority, duty and powers, are considered. 
When it is remembered that absolute sovereignty belongs 
to the nation alone; and that this sovereignty includes 
within its authoritative jurisdiction every individual 
subject or citizen, and every iota of governmental 
authority ; and that these state governments are but 
instruments or agencies of this absolute sovereignty to 
administer the nation's authority in matters of a purely 
local and domestic character, except so far as by the 
constitution of the United States they may be appointed 
to the execution of powers pertaining to the general 
welfare, it will not be difficult to find authority in the 
general government to hold these local agencies of 
the nation to a strict accountability for the manner in 
which they discharge the trusts committed to them. So 



124 GOVERNMENT. 

hmg as there is a supreme law, binding alike upon state 
legislatures, state judges and governors; and tliere is a 
sui)renie legislature, a supreme judiciary, and a supreme 
executive, which are autliorized to speak and act by the 
will and power of the nation, the political rebellion of 
a state is as much the subject of national restraint and 
control, as the individual rebellion or treason of the 
citizen. 

g 263. To become a member of the house of repre- 
sentatives, a person must have attained to the age of 
twenty-five years, and must have been a citizen of the 
United States seven years, and must be an inhabitant 
of that state in which he is chosen. These are the only 
qualitications imposed by the constitution as essential 
to membership of the house. It is designed that it 
s,hould be eminently a democratic body, fresh from the 
l)resence of the people every two years ; consequently, 
that it should be familiar with the needs of the pe()i)le 
of every class, occupation, trade, profession and calling. 
Among its members are to be found men representing 
every bi'anch of industry, as farmers, mechanics, traders; 
and professional men as lawyers, doctors and ministers; 
so that all classes of society needing the fostering hand 
and [)rotecting care of the government, will find some 
one in this body to speak for his calling, and represent 
his interest. The house is made a branch of the legis- 
lature, that the will of the people may enter directly into 
the composition of the laws; that through this branch 
they may compel regard to, and a protection of the public 
welfare, as pertaining to the interests of all classes. 

g 264. It cannot be denied that so numerous and 
transient a body as the house of representatives in con- 
gress, is unfavorable to judicious and wise legislation. 
That a majority of its members have not the culture, 
discipline or information necessary to constitute a body 
of wise and discreet legislators. Nor is it necessary 
they should have. As a body, they represent the wants 
and wishes of the people, with a demand that the legis- 
lation of congress shall conform thereto ; and as a 
branch of the legislature, they have power to enforce 
their requirements. They do not represent the discre- 
tion or wisdom of the state necessary for wise and 
judicious legislation. They were not constituted for 
that purpose. The house is constituted with reference 
to the wishes, and not the wisdom, of the nation. 
Hence, the essential feature of the house is, that the 



LEGISLATIVE DEPARTMENT. 125 

members shall be immediately from the people, Tvith 
qualifications sufficient to understand and represent 
their wishes. For such purpose, it is sufficient that the 
member has attained to the a^e of twenty-five years; 
and to ])rompt him to be faithful, he must go back to 
the i)eop]e every two years, and receive their judgment, 
and learn anew their requirements. 

g 265. It is no disparagement of the farmer, mechanic 
or tradesman to say of them as a class, that they have 
not the culture, education and discipline essential for 
the learned professions, or for discharging the duties 
devolved upon the legislator or judge. The i)eople of 
the nation; being themselves farmers, mechanics, trades- 
men and professional men, in the structure of the 
general and state governments, and by their general 
and local laws, have affirmed the same doctrine. They 
have deemed it necessary to secure fidelity to their 
common welfare, by reserving to themselves a place in 
the department of legislation ; but they have never 
deemed it prudent or safe to intrust to the popuhu' 
branch of the legislature the sole i^owers of legislation. 
To legislate wisel}^ and well for the interests of all, 
requires the possession of an educated mind, a matured 
judgment, a prudent foresight, a comprehensive under- 
standing, and calm reflection — possessed by few ; and 
for this reason the people, in the structure of the legis- 
lative and judicial dei)artments of government, have 
sought to secure the aid of this class, in the senate and 
upon the bench. And wherever they have departed 
from this policy, they were seduced by the devices and 
wiles of the demagogue, and not influenced by the wise 
and prudent counsels of the good, or the dictates of 
their own plain common sense. 

g 2GG. This principle is observed in the praclical 
organization of the house into working committees. 
Each interest asking for legislative aid is at once referred 
to an appropriate committee, which consists of such 
members of the house as are supposed to be competent, 
or, at least, x)eculiarly fitted from their profession, .art, 
trade or calling, for the discharge of the particular duties 
required. This organization of the house into commit- 
tees appropriate to the investigation of every ])articular 
question likely to arise in the course of i)opular legisla- 
tion, has its basis in the recognition of the principle, 
that men should be suited by qualifications, for the par- 
ticular work committed to their execution. 



126 GOVERNMENT. 

g 267. The people are more interested in wise, prudent 
and necessary le^^islation ; in upright, faithful and just 
administration of the laws, than they are in the questions, 
by whose wisdom have they been framed, or by whose 
judgment have they been administered. Hence, the 
highest interests of the people require that the qualities 
of wisdom, prudence, foresight, judgment and integrity, 
should characterize those who administer the govern- 
ment ; and any ijolicy which tends to lower the standard, 
or to exclude this class from a controlling influence 
in the several departments of government, is adverse to 
the common welfare of the people, however much they 
may flatter themselves they have gained in power. 

g 268. The advantages of a democracy over every 
other form of government, are to be found in the poten- 
tial presence of the people in the administration of their 
authority, by which they are enabled to secure the 
incorporation of their common rights and interests into 
the laws by which they are to be governed. If this end 
could be accomplished under a monarchy or an aristoc- 
racy, the people would be less liable to the corrupting 
influence of political demagogues, than they are under 
a democracy; and their common rights and interests 
would be equally as well protected. But this cannot be. 
Popular rights and interests will not be secured by a 
government which does not feel the potential presence 
of the people in its administration. 

§ 269. But this potential presence of the people in 
the administration of the government is most effect- 
ually secured by making one branch of the legislative 
department purely a representative body — lilie the 
house of representatives, as a branch of congress. The 
constitution provides for receiving them immediately 
from the people of the nation. As far as possible, it 
provides for an equal representation of the people of 
every part of the nation in the popular branch of the 
congress. It apportions the representatives among 
the several states according to their respective num- 
bers ; taking care, however, to secure to the people of 
each state, at least one representative.^ When, for 
any cause, vacancies shall happen in the representation 
from any of the states, the executive authority thereof 
is required to issue writs of election to fill the same.^ 

1 Art. 1, 2 2, cl. 3. 
s Art. 1, 2 2, clause 4. 



LEGISLATIVE DEPARTMENT. 127 

g 270. At tlie time the draft of the constitution was 
proposed, the convention were not prepared to fix upon 
an exact ratio of representation. But in their draft, 
which was adopted by the people, they provided for 
taking- an actual enumeration of the people of the 
United States within three years after the first meeting 
of the congress ; and until that should take place, the 
representation of the people of the several states was 
determined by the constitution itself.^ The constitution 
also provided for estimating the numbers of the people 
to be represented, by adding to the number of free 
persons — including those bound to service for a term 
of years, and excluding Indians not taxed — three- 
fifths of all other persons. For the purpose of future 
equality of representation, the constitution provided 
that a new enumeration should be taken within every 
subsequent term of ten years. 

g 271. Equality of representation in the institution 
and administration of the government is an essential 
feature of democracy. Hence, the i)eople of the United 
States provided in the constitution that representatives, 
&c., should be apportioned among the several states 
according to their respective numbers ; that is, the 
people of the several states should have a representation 
4n congress in proportion to their number of inhabitants. 
Proportion signifies, equality of ratio ; for which equal- 
ity the people intended to make constitutional provision. 
But it is manifest, that with a limited representation in 
congress, and an ever-changing population in the several 
states, an exact equality of ratio can never be obtained. 
This provision, then, must be interpreted according to 
the reason and spirit of the same. Since an exact 
equality cannot be obtained, it intends that a ratio of 
representation shall be adoped which shall give to the 
people of the several states a representation in congress 
as nearly equal as possible ; leaving as few and small 
unrepresented fractions in the several states as possible. 
But as the number of representatives are limited by the 
provision that they shall not exceed one for every thirty 
thousand^ unrepresented fractions less in number than 
thirty thousand are always liable to exist in some of the 

1 By th3 provisions of the constitution, the ratio for the first house of repre- 
sentatives was not to exceed one representative for every tiiirtv tliousand 
inliabitants ; and until an actual enumeration should take place, New Hamp- 
shire was entitled to clioose three representatives ; Massachusetts, eight; Rhode 
Island and Providence Plantations, one; Connecticut, Ave; New Yorli, six; 
New Jersey, four; Pennsylvania, eight; Delaware, one; Maryland, six; Vir- 
ginia, ten; Nortli Cirolina, Ave; South Carolina, Ave; and Georgia, three — 
making in all sixty -Ave representatives. (Art 1, 2 2, clause 3, Const. U. S.) 



128 GOVERNMENT. 

states. Bat taking a periorl of years together, tliey will 
be found sometimes in one state and sometimes in 
another, ultimately becoming nearly equal ou the prin- 
ciples of average. 

§ 272. It is not to be inferred that the people of the 
United States intended to recognize the authority of 
the several states as absolutely' sovereign, in thus pro- 
viding for this equality of ratio in their congressional 
re[)resentation. The state governments, according to 
the American system, are an essential branch of the 
national administration. While the sovereignty of 
the nation necessarily includes all other governmental 
authority to be exercised within its territorial limits, 
the democratic principle by which that authority is to 
be exercised, requires that those whose interests are 
involved in a particular administration shall be intrusted 
with it. Thus, there are interests common to the people 
as a nation, requiring the supervision and control of a 
government having jurisdiction throughout the nation. 
There are interests of a local and domestic character, 
affecting only those residing within the limits of a par- 
ticular state ; and there are other interests confined to 
the municipality, affecting only those who resided in the 
X)articular city or town. But the citizen of the city or 
town has also other interests in common with the citizen 
of the state or nation. In other words, while he is a 
citizen of the city or town, he is also a citizen of the 
state, and of the nation ; and has rights and interests 
peculiar to the city, the state, and the nation. The 
democratic or American system requires that, as a 
citizen of the nation, he shall be represented and be 
permitted to participate in the administration of the 
general or national government ; and shall have equal 
authority in such administration with other like national 
citizens. That as a state citizen, it is his right to be 
represented and to participate in the administration of 
the state government, and to have equal authority in 
such administration with all other like state citizens. 
That as an inhabitant of a municipality, it is his right 
to participate in the administration of the municipal 
government, npon equal terms with other like inhab- 
itants of the municipality. And the democratic or 
American system further requires that, so far as the 
public interests will permit, none but the inhabitants 
of the municipality shall participate in the municipal 
administration ; none but the citizens of the state shall 



LEGISLATIVE DEPARTMENT. 129 

participate in state administration ; and that only the 
citizens of the nation should participate in the national 
administration. But all these are questions of admin- 
istrative right — not of governmental authority. The 
authority to administer, is one thing ; the authority 
which is administered, is quite another. 

g 273. The principles of democracy do not antagonize 
with the existence of absolute sovereignty in the body 
of the people or nation ; nor do they require that this 
sovereignty should be parceled out, or divided between 
different classes of governments. The existence of an 
absolute and undivided sovereignty is as essential to a 
democratic government, as it is to a monarchy or des- 
potism. Authority to compel obedience is absolutely 
essential to all governments. Sovereignty is always 
one and indivisible ; and its authority is always the 
same, b}'' whomsoever lawfully exercised. The funda- 
mental principle of democracy is, that sovereignty 
belongs to the people of a nation taken together as a 
Avhole. That each individual is sovereign only in respect 
to his own, when compared with other individuals ; but 
that no one is sovereign when taken in reference to all. 
That the public authority is the authority of all ; and is 
alone sovereign in respect to all, and over all. With 
resi)ect to the administration of this authority, the dem- 
ocratic theorj^ asserts the right of those to administer 
whose sole rights are to be atiected by the administra- 
tion. But in such administration, whether it be of the 
general, state or municipal government, there is but one 
source of governmental authorit3\ 

§ 274. This clause of the constitution apportioning 
this congressional representation among the several 
states, was providing for equality of representation in 
the administration of national authority, in order that, 
as far as possil)le, all citizens of the nation, without 
regard to the particular states in which they resided, 
should be equally represented in their interests, and 
shoukl have an equal voice in the administration of 
national authority ; and the state governments were 
to be used as national agencies for accomplishing such 
a result. They were already organized, and were 
administering in that department of internal adminis- 
tration which embraced subjects of a local and domestic 
character. They were better adapted to that sphere of 
administration than the general government possibly 
could be. Therefore, there was no occasion for super- 
17 



/x 



130 GOVERNMENT. 

seding tliem, for the purpose of instituting new agencies 
to accomplish the same objects. For this reason, the 
people of the nation, in the institution of their general 
government, carefully preserved to the states the exer- 
cise of such authority as was not needed for the general 
safety and welfare of the nation ; and denied to the 
states the exercise of such authority only as more 
properly belonged to the general administration. 

§ 275. To the house of representatives thus consti- 
tuted is committed the sole power of impeachment. 
This is the manner in which one high in ofl8,ce, having 
been guilty of a breach of his official trust, is arraigned 
to answer before the people for such delinquency.^ Since 
government is essential to the existence and well-being 
of society, and can be administered only by intrusting 
individuals with the exercise of the public authority, 
those who are thus intrusted are under the highest obli- 
gations to administer with sole reference to the public 
good. Consequently, when such an one becomes faith- 
less in the execution of his trust, and uses the public 
authority to the detriment of society, he commits a 
crime against the people, deserving the severest punish- 
ment ; for he not only deprives society of the benefits 
of a proper administration of his office, but he so uses 
the power committed to him as to tend to the subversion 
of the very interests he was placed there to jiromote. 
His crime will be in proportion to the magnitude of 
the public interests betrayed. But whatever it may 
be, the safety and welfare of the pubhc require that 
he be speedily removed, and the trust be committed to 
worthier hands. 

2 276. But to remove such officer, justice requires that 
he should be tried before some proper tribunal, and 
have an opportunity of vindicating his official conduct ; 
that he should be found guilty before all the people, 
and that the solemn judgment of an impartial tribunal 
should pronounce his guilt. The nature of the crime 
committed, the official position of the culprit, and the 
importance of the proceeding to the public, require a 

1 " An impeachment, as described in the common la-w of England, is a pre- 
sentment by the liouse of commons, the most solemn and grand inquest of the 
■whole kingdom, to the house of lords the most high and supreme court of 
criminal jurisdiction of the kingdom. The articles of impeachment are a kind 
of bill of indictment found by the commons, and tried by tlie lords, who are, 
in cases of raisdemeanors, considered not only their own peers, but as the 
peers of the whole nation." "The object of prosecutions of this sort, is to 
reach high and potent offenders, such as might be presumed to escape punish- 
ment in the ordinary tribunals, either from their own extraordinary influence, 
or from the imperfect organization and powers of those tribunals." (Story's 
Com. on Const. U. S., 1 6S8 and notes.) 



LEGISLATIVE DEPARTMENT. 131 

tribunal of peculiar construction ; one in which the 
people, whose trusts had been betrayed, may be repre- 
sented in the arraignment of the offender ; but one, 
nevertheless, whose judgment cannot be biased by popu- 
lar clamor. The public welfare demands, that official 
misconduct should be punished; that those guilty of 
maladministration in otfice should be removed ; that 
fidelity to the public trust should, at all times and in all 
I)laces, be maintained ; and it, therefore, requires that 
the authority to impeach and try a public officer should 
be intrusted only in the hands of a most responsible 
tribunal ; one in which there is to be found the highest 
wisdom, prudence, integrity and public virtue. It should 
be a tribunal in which the power, the dignity and wel- 
fare of the nation could, by no possibility, be betrayed. 
% 277. Trials by impeachment have reference only to 
public character and official duty. In general, those 
offenses against society which can be committed alike 
by private persons and public officers, are not the sub- 
jects of im[)eachment. The constitution provides, " that 
the president, vice-president, and all civil officers of the 
United States, shall be removed from office on impeach- 
ment for, and conviction of, treason, bribery, or other 
high crimes and misdemeanors.^ That the house of 
representatives shall hav^e the sole power of impeach- 
ment,"^ and that "the senate shall have the sole power 
to try all impeachments." ^ All offenses not immedi- 
ately connected with office, except the two expressly 
mentioned, are left to the ordinary course of judicial 
proceedings ; and neither house can regularly inquire 
into them exce[)t for the purpose of censuring or expel- 
ling the member. But in respect to impeachment, the 
ordinary tribunals are not precluded, either before or 
after conviction, from taking congnizance of the public 
and official delinquency.* 

I Art. 2, §4. 2 Art. 1, ? 2, cl. 4, idem. 3 Art. 1, § 3, cl. 6, idem. < Rawle on the 
Constitution, 204. See No. 65 Federalist, in appendix, p. — 

Tlie term "impeachment" is introduced into the constitution as one of 
known definition, and, therefore, recourse must be had to the common law 
of England for the definition thereof. •' In England, the practice of impeach- 
ment by the house of commons before the house of lords, has existed from 
very ancient times. Its foundation is, that the subject intrusted with the 
administration of public aflfairs, may sometimes infi-inge the rights of the 
people, and be guilty of such crimes as the ordinary magistrate either dare 
not or cannot punish. Of these, the representatives of the people, or house of 
commons, cannot judge, because they and their constituents are the persons 
injured, and can, therefore only accuse. But the ordinary ti-ibunals. would 
naturally be swayed by the authority of so powerful an accuser. That branch 
of the legislature which represents the people, therefore brings the charge 
before the other branch " — the senate here, the house of lords in England — 
"who are said not to have the same interests, or the same passions as tho 
popular assembly." (Rawle on the Const., p. 198; 1 Bl. Com., 259.) It is not 
strictly true, that the senators have not an equal interest with the representa- 



132 GOYEENMENT. 

§ 278. The house of representatives is properly 
intrusted with this power of impeachment ; not as a 
legislative body, but as a body of the representatives 
of the nation, coming, as they do, from every part 
thereof. As an ofiicial body, they are nearer the people 
than any other. They feel more quickly the effects of 
maladministration ; and they are, therefore, the proper 
body to complain, and frame an accusation against the 
alleged delinquent. It is not to be supposed that a 
body composed like the house, of members from all 
political parties, immediatelj^ representing the various 
interests of the people, will be likely to accuse a high 
officer, or present articles of impeachment against him, 
without probable cause. It is not to be supposed that 
any political party, from mere party spirit or strife, will 
corruptly undertake to lay their hands upon a faithful 
public officer, that they may make place for some 
partisan favorite. The people would see in such a pro- 
cedure the sure destruction of all governmental security 
and x^rotection ; and would avail themselves of the 
earliest opportunity to hurl from power such partisan 
criminals, and put better men in their places. 'No party 
will undertake to impeach a high officer of the govern- 
ment, when the evidence of criminality is not sufficiently 
clear to warrant a conviction, not only in the minds of 
the senators, but also in the minds of the people. 

g 279. Experience has proved that, however guilty in 
the exercise of the trust committed to him the official 
delinquent may be, it is extremely difficult to procure a 
conviction on the trial of an impeachment. It proves 
that the leading men of the political party to which the 
delinquent belongs, will not be disposed to commence 
the ijrosecution. There is a general sentiment that the 
political party is responsible for the official misconduct 
of those it elects to office ; and, therefore, there is a 
disposition in the party to apologize for, or conceal the 
delinquency, rather than to expose or x)unish the delin- 
quent. For these reasons, impeachments are usually 
prosecuted by the political opponents of the accused. 
Consequently, the political friends of the delinquent are 
liable to be influenced to make common cause against 
the prosecution, and to defend with the zeal and reck- 
lessness of a political party, on trial for its political sins. 

tives in the fidelity of public officers; but it is true that the members of the 
senate are selected from a senior class in society ; and the body is composed of 
men wlio are supposed to be nriore emhient in native and acquire ability ; men 
of more refinement and higlier culture, than those generally composing the 
house. 



LEGISLATIVE DEPARTMENT. 133 

Thus, the party lines may be closely drawn, and the 
question of ^^iiilt or innocence be determined by party 
discipline, rather than by the evidence submitted. And 
it is seldom that either party can command the consti- 
tutional majority requisite for a conviction. But even 
when the requisite party majority exists, there often are 
men of either ijarty who may be subject to influences 
of divers kinds ; and the friends of the accused, when- 
ever it becomes necessary, will be likely to find the 
means of detaching a sufficient number from the side 
of the prosecution to prevent conviction. 

S 280. An attempt at impeachment, accompanied 
with a failure to convict, is disastrous to political and 
public morals. The evidence may disclose official mis- 
conduct ; infidelity to the sacred trust committed to the 
delinquent; the powers committed to him, to be exer- 
cised for the public welfare, perverted to corrupt 
individual or i^artisan purposes ; thus showing reck- 
lessness, dishonesty and corruption. Yet the trial will 
be likely to exhibit a great political party, excusing or 
conniving at such official misconduct; making light of 
it ; palliating it as not uncommon to political parties, or 
oiiicial incumbents ; asserting, in effect, that strict fidel- 
ity in official administration is not to be expected. 
Then comes the acquittal, virtually sanctioning by its 
judgment, official delinquency and party corruption ; 
licensing those in office to be dishonest and corrupt ; 
encouraging them to be so, by the respectability of 
those who have con^mitted, or now apologize for and 
excuse, such delinquency, thus sanctioned by the judg- 
ment of the highest and most solemn tribunal of the 
state or nation. The tendency and result in such case is 
to make dishonesty and corruption in office respectable, 
and venality the spirit and rule of official administra- 
tion ; until, finally, the people cease to expect or require 
fidelity on the part of those intrusted with the exercise 
of governmental authority. 

§ 281. But notwithstanding all these dangers, courts 
for the impeachment of high officials for crimes com- 
mitted against society by the abuse of official powers, 
are necessary. And it should be the constant aim of 
those intrusted with the exercise of legislative authority 
to provide certain and just means for bringing official 
delinquents to a speedy accountability. There is wisdom 
and power sufficient, and there are means competent to 
be employed under the sanction of legislative authority, 



134 GOVERNMENT. 

to hold to a strict accountability every oflQcial incum- 
bent. The mass of society are sufficiently capable and 
honest to know the necessity for fidelity on the part of 
those intrusted with the administration of the govern- 
ment, and to require of them the exercise of such 
fidelity. Let honest, earnest, patriotic men take charge 
of the primary assemblies, in which these corrupt 
streams of maladministration have their origin, and 
which are now usually controlled by venal and designing 
politicians, and the mischief would soon be remedied. 
The remedy should be applied at the root of the evil, if 
a vigorous and healthy administration of tl^e public 
authority is to be hoped for or expected. _) 

g 282. A member of the house is elected for two 
years, marking the period of congressional duration* 
There have hitherto been two sessions, designated as 
the first and second sessions of the particular congress; 
and whenever, for any cause, a special session has 
been called, then a third session has been held. The 
organization at the first session continues through the 
succeeding ones ; so that, notwithstanding there may 
be several sessions of a particular congress, there is but 
one organization of it. The term of two years was 
unanimously agreed upon as the proper period of con- 
gressional duration. A less period than two years 
would have been too short for maturing many important 
measures in respect to which legislation is required; 
and as each successive congress is composed, to a large 
extent, of new and inexperienced members, the labors 
of a prior congress could not readily be continued in 
the succeeding one, without involving a repetition of 
their former labors. Besides, whatever may be the 
ability of a new member, experience is necessary to 
make him a practical and ready legislator. Two years 
are scarcely sufficient to make one so familiar with the 
routine of legislative duties as to constitute him a prac- 
tical legislator ; and it is generally bad policy for the 
X^eople to exchange a faithful and experienced represent- 
ative for an inexperienced one. 

§ 283. It should be the object of every constitutional 
government to secure men to administer in its several 
departments, who possess wisdom to discern, and virtue 
to pursue, the common good of society. And it should 
provide every safeguard against a departure from these 
principles, so that fidelity in the administration of the 
public authority would be secured. Therefore, great 



LEGISLATIVE DEPARTMENT. 135 

care should be observed in selecting men of ability, 
intelligence and integrity to represent tbe people in the 
bouse ; and by limiting their term of oflBce to two years, 
they are held to an immediate responsibilitj'- for the 
manner in which they discharge their duties. But 
should a representative by his ability and fidelity, serve 
faithfully his constituents, it would be wise and just on 
their part, to elect him for a second, or even for many 
succeeding terms. For while he continues faithful to 
the trusts committed to him the longer he serves, the 
more experience and practical ability will he acquire ; 
and, consequently, tbe more efficient will he be in the 
service of his constituents. It is bad policy for the people 
to exchange a faithful and experienced representative 
for an untried one, whatever may be his pretensions or 
promise. Prudent men in the administration of their 
own affairs, are never guilty of such folly. In demo- 
cratic countries, no man has any personal claims for 
office ; and whoever sets up such claim, evinces an 
intention to serve himself, rather than to serve the 
public ; and upon every principle of prudent precaution 
his claims should be discarded. 

§ 284. It is better, however, that the term of office 
of a member of the house should be limited to two 
years, than to continue longer; and then, if the member 
proves to be faithful and efficient, to reelect him for a 
second term. In this way immediate responsibility is 
secured, together with the benefits of an experience 
incident to a longer term. The people would generally 
adopt this practice, were they not influenced to the con- 
trary by a class of ambitious men, who are constantly 
setting up claims for office, and insisting that their turn 
to serve the people is at hand. The cry of rotation in 
office is often uttered by those who are impatient to 
plunder the jjublic ; and when no other reason can be 
asigned why an official incumbent should be dismissed 
than that he has been in office a long time, the pre- 
sumption is, the common welfare requires that he should 
be continued. For if his administration has been so 
faithful that no fault can be found, he is the man of all 
others to continue ; and had it not been so, one anxious 
to displace him would be likely to discover it, and 
allege it as a reason why he should be dismissed. 

§ 285. Too much attention can scarcely be given by 
the people to this subject. To secure responsibility 
on the part of the representative, there should be short 



136 GOVERNMENT. 

terms of office. To encourage fidelif^y and secure 
efficiency in the discbarge of its duties, those who 
have been faithful, and have evinced the proper and 
necessary ability, should be continued by reelections ; 
and, as a general principle, it should be understood that 
the public welfare demands no change while the incum- 
bent is competent and faithful to his official trusts. 
Nothing tends more directly to drive honest and faithful 
men from the field of political administration, than to 
be obliged to come into competition with designing and 
dishonest demagogues, and to deal with office as though 
it were a political bone to be seized b}^ hungry dogs 
starving for official pap. When, to obtain a nomination 
for an office, or an election, money must be spent by the 
candidate to buy up the influence of professional wire- 
workers, or to corrupt the suffrage of the people, men 
of real virtue and integrity of character will seldom be 
found to be candidates for office ; and, as a result, the 
tricky, dishonest and corrupt will be likely to bear sway 
in the political arena; at least, such will be the ten- 
dency ; the people will be swindled, and the ijublic 
welfare betrayed. 

g 286. The continuance of the official term of a mem- 
ber of congress should be of longer duration than that 
of a member of a state assembly. A member of con- 
gress is required to become familiar with subjects of 
international administration in resjDect to commercial 
intercourse, etc. He is also to legislate, touching public 
interests affecting all the states ; while a member of the 
state legislature is only required to be familiar with 
the habits, manners, institutions, occupations and laws 
of his own state, to qualify him generally for a state 
legislator. In a single state, the pursuits and occupa- 
tions of the people are more homogeneous and uniform ; 
and, consequently, it is less difficult to ascertain and 
understand the legislation required to foster and protect 
them ; and, beside, the people of a single state are more 
familiar with the principles of their domestic adminis- 
tration, because more immediately connected with them 
in their daily application to the common pursuits. 
Prom divers considerations of this character, it is appa- 
rent that it is necessary to make the official term of a 
member of the house of congress of longer duration 
than that of a member of the corresponding branch in 
the state legislature. 



LEGISLATIVE DEPARTMENT. ]37 

% 287. A member of the house of representatives is 
required, at the time of his election, to be an inhabitant 
of the state from which he is chosen. The constitution 
does not determine the length of time he must have 
resided in the state prior to the election, nor in what 
particular part of the state he should reside. These 
questions are left to the determination of the people. 
There can be no doubt that congress may, by law, 
determine these questions, whenever it shall appear that 
the general welfare requires them to do so. But as the 
member is to represent the people of his particular state 
in the congress, it is more in harmony with democratic 
principles tQ permit the people of the several states to 
adjust these questions according to their best judgment. 
It would be wise to require that the member should 
have resided in the state long enough to have become 
acquainted with the interests and views of his particular 
constituency ; and that he should be so located as to be 
likely to understand their requirements, and to feel his 
responsibility to them. But the question of particular 
location should be left to the good sense of the people 
of the district selecting a member. It may happen that 
the man best suited to represent them resides in some 
other district of the state; in which case they should be 
permitted to return him as their member. And it not 
unfrequently happens that good men, whose services are 
required by the public, reside in districts adverse to 
them in politics ; and, therefore, can be sent to congress 
only b}'' the suffrages of some other district. In such 
cases, the people should be permitted to select such, 
without regard to the particular district in which they 
reside, because they would thus best represent the 
popular interests, and promote the general welfare of 
the nation. 

18 



138 GOVERNMENT. 

CHAPTEE YIII. 

THE LEGISLATURE — THE SENATE. 

§ 288. The senate of the United States is composed 
of two senators from each state, chosen by the legis- 
lature thereof, for six years; and each senator is entitled 
to one vote. The constitution provides for dividing the 
whole number of senators into three classes, in respect 
to the time when the official term shall commence, and, 
consequently, when the same shall expire. It declares 
that, " immediately after they" — the senators — "shall 
be assembled, in consequence of the first election, they 
shall be divided as equally as may be, into three classes. 
The seats of the senators of the first class shall be 
vacated at the expiration of the second year; of the 
second class, at the expiration of the fourth year ; and 
of the third class, at the expiration of the sixth year." ^ 
By this provision the senate is made a continuous body; 
and is, in this respect, likewise, unlike the house, which 
continues but for two years, when a new body is required 
to be organized. 

§ 289. In the constitution of the senate as a political 
body, two features are particularly prominent. First, it 
is not a representative body. Second, it is a continu- 
ing or perpetual body, intrusted with some duties not 
strictly legislative, although it constitutes one branch 
of the legislature. By not being a representative body, 
is meant, the senate does not represent a popular con- 
stituency. It is claimed, however, that it represents the 
states in their political or organic existence ; and that 
thus, through the senate, a quasi confederation of the 
states exist as a part of the general government. And 
an attempt to sustain this view is made by appealing to 
the discussions in the convention which framed, and the 

1 At the first session of congress under the constitution, the division of the 
senators into tliree classes was made in the manner following : The senators 
present were divided into three classes by name, the first consisting of six, the 
second of seven, and the third of six. Three papers of equal size, numbered 
one, two and three, were by the secretary rolled up and put into a box, and 
drawn by a committee of three persons chosen for the purpose, in behalf of the 
respective classes in which each of them was placed ; and the classes were to 
vacate their seats in the senate according to the order of the numbers drawn 
for them, beginning with number one. It was also provided, that when sena- 
tors should take their seats from states which had not then appointed senators, 
they should be placed by lot in the foregoing classes, but in such a manner as 
should keep the classes as nearly equal as possible. (Journals of Senate, 1.5th 
May, 1789, pp. 25, 26.) In arranging the original classes, care was taken that 
both senators from the same state should not be in the same class, so that there 
never should be a vacancy at the same time of the seats of both senators. 
(Story's Com. on Const., § 726.) 



THE LEGISLATURE— THE SENATE. 139 

several conventions which adopted, the constitution. 
It is not denied that there were those who advocated 
this feature in the constitution of the senate, upon the 
ground that the senators were the representatives of 
the states, as political bodies ; and that the security 
of the smaller states demanded an equal representation 
with the larger ones, in the senate ; and they insisted 
upon such representation of the states. But such is not 
the principle involved in the constitution of the senate, 
as a branch of the national legislature, or as a repre- 
sentative body of the states. 

§ 290. The senators are not the representatives of the 
states as political institutions ; nor are they in any 
essential particular the especial guardians of the political 
rights of the states against the possible encroachments 
of the general government. In that respect they have 
no duty to perform not common to the members of the 
house of representatives ; and it is no more the duty of 
the senator to see to it that the general government, 
in the administration of the powers committed to its 
exercise, keeps strictly within its constitutional limits, 
than it is the duty of the representative. Both are 
sworn to obey the requirements of the constitution in 
the exercise of their official trusts, and each are equally 
bound to do so. 

§ 291. At the time the general government was insti- 
tuted, the people of the United States, as represented 
in their political discussions, felt the need of a national 
government, to be intrusted with authority to administer 
in all matters pertaining to the general welfare of the 
nation. It was the almost universal conviction that 
the states, as political institutions, could not be intrusted 
with such administration. But there were serious appre- 
hensions lest a great central government might be 
formed, and all governmental authority be cousolidated 
in it, by means of which the state institutions might 
become absorbed, and the people be deprived of control 
in the administration of their local and domestic affairs. 
There were, likewise, apprehensions on the part of 
others lest the people, jealous of power not within their 
immediate control, and fearing the influence and oppres- 
sions of a strong government, like the one from which 
they had just emancipated themselves, should go to the 
other extreme, and destroy the national unity by state 
division and disintegration. Their discussions show the 
presence of these two classes in the federal and state 



140 GOVERNMENT. 

coiiventious. The one party was accused of being in 
favor of a consolidation of all authority in the general 
government, to the destruction of the states; the other 
was accused of adhering to the rights of the several 
states, to the destruction of the nation. 

§ 292. This difference of opinion was natural. The 
ultimate effect of adopting the one or the other was 
problematical ; for they were unaided by any historical 
parallel. Here were people — citizens of thirteen inde- 
pendent states, consolidated into one nation by a united 
and successful effort at establishing their common inde- 
pendence. They were a nation ; but to continue sucli, it 
was necessary to institute a national government. That 
necessity was immediate and imperative. And the gov- 
ernment to be instituted must be supreme in the exercise 
of its authority, or it could not secure the existence, 
maintain the independence, and promote the welfare of 
the nation. To make it, in its administration, dependent 
upon the diverse, and perhaps adverse wills of others, 
was to deprive it of the exercise of that authority 
which was indispensable to the dignity and authority 
of a government administering for a sovereign nation. 
But, on the other hand, the people were already living 
under state governments, instituted and administered 
by themselves. These governments were intrusted with 
the exercise of such authority as was necessary for the 
administration of their local and domestic affairs, and it 
was clear that no other government more general in its 
administration, could possibly administer so well, and 
secure to each citizen such exact justice. And, while 
they admitted the necessity for a government to admin- 
ister in national affairs, and were anxious to devise one 
that could do so without danger to the states, the great 
X)roblem to be solved was — how can such a government 
be instituted? and what must be its constitutional 
structure ? 

§ 293. The advocates of a strong national government 
were not hostile to the continuance of the govern- 
ments of the several states, within a sphere of authority 
that would not endanger the necessary eiSficiency of 
the government required for the stability, dignity 
and prosperity of the nation. Nor were the advocates 
of the continued independence and authority of the 
state governments hostile to the institution of a 
national government, upon a basis that would not 
endanger the liberties of the people, secured by their 



THE LEGISLATURE— THE SENATE. 141 

own administration of tlae state governments. They 
were not only willing, but desirous to ascertain some 
means of establisbiug a general government for the 
nation, which, while it would be most efficient in admin- 
istering the authority of the nation in all matters 
pertaining to its security and welfare, would at the same 
time be so limited, as to have no power to encroach upon 
the people of the states in the administration of their 
local and domestic affairs. And in all discussions of 
these questions it is to be remembered, that with the 
founders of the American governments the great desid- 
eratum was, to ascertain a mode in which the principles 
of self-government might be successfully applied to the 
administration of national and state interests. 

g 294. The founders of these governments were 
embarrassed in attempting to establish a system of 
national and state administration, by confounding the 
authority of the government with the authority of 
the people instituting it. And the difficulties experi- 
enced by them in finding a true theory of administration, 
arose out of the evident incompatibility between two 
governments over the same territory, embracing the 
same subjects, being each sovereign and absolute in 
their authority. The feeling was, that both could not 
be sovereign ; that one must be inferior to the other ; 
or, at least, one must have a check upon the other, so 
as to be able to prevent encroachments upon its rights. 
Yet to make the general government supreme, was to 
endanger the existence of the states ; to make the 
states sovereign, was to cripple and ultimately paralyze 
the nation. These difficuties were inevitable, upon the 
hypothesis that there were two sources of authority in 
the general and state governments. If there were two 
sovereignties to be administered over the same people 
and within the same territorial limits, the difficulties 
were insuperable. They perceived the truth of the 
doctrine of the revolution, that the authority to be 
administered by the government is the authority of the 
people, and that the government has no authority of its 
own ; but they had not carefully applied it in detail, 
in the institution and administration of government. 
The minds of American statesmen had been occupied 
more with vindicating their rights against the encroach- 
ments of arbitrary power, than in theorizing upon the 
best form of actualizing their principles in the structure 
of a national government. After they had established 



142 GOVERNMENT. 

their independence, and it had become necessary to 
institute a government to perpetuate it, their attention 
was then turned to this subject ; and the foregoing 
views represent their first impressions. 

g 295. But the fear lest the general government 
would, if supreme and unchecked by the states, encroach 
upon state authority and state rights, ceased, when 
it was remembered, that the same people by whose 
authority the general government was to be instituted 
and to be administered, were also citizens of the 
states, and equally interested in maintaining state 
administration ; and the like fear lest the states should 
usurp national authority, was perceived to be without 
foundation, when it was remembered that the citizens 
were, likewise, citizens of the nation, and equally 
interested in maintaining the authority of the general 
government. When, after much discussion, it was per- 
ceived that the state and national citizens were one and 
the same ; that their general and local interests centered 
in the same individuals ; that the national citizen was 
likewise a state citizen, and vice versa, the fear lest the 
citizen of the nation should turn upon himself, as 
the citizen of a state, and rob or destroy himself, seemed 
absurd ; and, therefore, the fear of centralization of 
power on the one hand, or diffusion of it among the 
states on the other, ceased ; and thus the people were 
enabled to establish a general government upon the 
true democratic theory. Such were the comjjromises 
of the constitution. 

% 296. The compromises of the constitution, so called, 
consisted in harmonizing the views of those entertaining 
these opposite opinions, and in their agreement upon a 
plan of government in accordance with the democratic 
theory enunciated by the fathers of the revolution — 
the theory that the people ^are the source of govern- 
mental authority — that governments are instituted by 
the people for the administration of their authority — 
that there is but one source of authority to be adminis- 
tered, either by the general or state governments, 
although there may be several distinct administrations. 
In short, by compromises is meant, one party renounced 
consolidation on the one hand ; the other, national 
disintegration; and both nnited in providing for the 
administration of public authority, through the instru- 
mentality of the general and state governments, allotting 
to each the exact sphere in which it was to administer. 



THE LEGISLATURE— THE SENATE. 143 

To the general government was committed the adminis 
tration of the nation's authority in relation to subjects 
pertaining to its common defense and general welfare. 
To the state governments was commttted tlie exercise 
of whatever authority remained essential to the internal 
administration in respect to local and domestic interests. 
And whatever was not committed to either, remained 
with the people, to be exercised by them whenever 
occasion might make it necessary. 

§ 297. When it is remembered that government as a 
corporate institution, belongs to the people, and is an 
instrument of administration merely, and can exercise 
no authority not intrusted to it, and can exercise the 
powers delegated only for the purposes prescribed, it 
does not become a very complex question to assign to 
it the true sphere of its duties and action. When the 
sovereign authority to be administered is distinguished 
from the authority of the administrator ; that is, when 
the authority of the creature is distinguished from the 
authority of the creator, there will be less liability to 
err in treating upon the authority and powers of gov- 
ernment. The general government of the nation as 
instituted by the people of the United States, is but an 
instrument in the hands of the nation for administering 
its authority in the manner prescribed. For any other 
purpose, it has no rights, interests, authority or exist- 
ence. Let not the people be deceived, then, by speaking 
of the general government as though it were an entity 
aside from the purposes for which it was instituted. It 
is the same, also, in respect to the state governments. 
They are merely corporate rustitutions, created to be 
used as instruments in the hands of the people for the 
administration of the public authority in matters per- 
taining to their domestic interests. For any other 
purpose, they have no rights, interests, authority, or 
even existence. Therefore, let no one be deceived by 
supposing them to be institutions having an existence 
and authority, independent of the purposes for which 
they were created. State rights and state authority can 
mean nothing other than the rights and authority of 
the people of the states ; or the authority intrusted to the 
exercise of these local institutions. Therefore, when it 
is said, the senate of the United States is the representa- 
tive body of the states as political institutions, it is to 
be understood that the seuate represents the wisdom, 
discretion, prudence, foresight and dignity of the people 



144 GOVERNMENT. 

collectively, as a check upon the indiscretion, impulse, 
haste and want of foresight, in the individual masses ; 
otherwise, it means nothiug. 

g 298. When, therefore, it is said that the senate as a 
branch of the general government,- represents the states 
therein, in a manner different from that in which they 
are represented by the house of representatives, it should 
be understood that the senate represents the collective 
wisdom, virtue, prudence, foresight and dignity of the 
state, as distinguished from that individual interest, 
feeling, impulse and indiscretion, which is more immedi- 
ately represented by the members of the house, coming, 
as they do, from the immediate presence of a popular 
constituency. The senator certainly does not represent 
the state or its interests, as separate from the people 
and their interests ; that is, he does not represent the 
iustitution called a state government in respect to in- 
terests, rights, authority and existence, separate from the 
people, because the state has no such interest, rights or 
existence to be represented in the general government, 
or elsewhere. ^ 

,§299. It was the manifest design of the people in 
dividing the legislative department of the government 
into two distinct branches, and in giving to the Senate 
a constitution distinct and dissimilar from the consti- 
tution of the house of representatives, to give to the 
senate the character and influence in the exercise of 
governmental authority, which would naturally attach 
to a body thus selected and constituted. The peo- 
ple were to be equally represented in the house; but 
they were not to be represented at all in the senate. 
That body was, so far as legislation is concerned, insti- 

1 In speaking upon the subject of the constitution of the senate, Mr. Gerry 
said, " the evils we experience flow from tlie excess of democracy." (5 Lipp. 
Ell. Deb., 136.) Mr. Mason thought the house of representatives ought to be 
elected by the people, and be made the grand depository of the democratic 
principle of the government. It was, so to speak, to be our house of commons. 
It ought to know and sympathize with every part of the community, and 
ought, therefore, to be taken from the different parts of the republic. (Id.) Mr. 
Wilson advocated the same doctrine. Mr. Madison considered the popular 
election of one branch of the national legislature as essential to every plan of 
free governnaent. He was an advocate for the policy of refining the popular 
appointments by successive flltrations, but thought it miglit be puslied too far. 
He wislied the expedient to be resorted to only in the appointment of the 
second branch of the legislature, &c. (Madison's Papers, 5 Lipp. Ell. Deb., pp. 
136, 137.) Mr. Dickinson thought it essential that one branch of the legislature 
should be drawn immediately from, the people, and that the other should be 
elected by the state legislatures ; that in the formation of the senate, it ought 
to be carried through such a refining process as would assimilate it as nearly 
as might be to tlie house of lords in England. Mr. Pierce was for an election 
by the people as to the first branch, and by the states as to the second branch. 
Mr. Read thought there was too much attachment betrayed to the state gov- 
ernments. He thought we must look beyond their continuance : that the 
national government must soon swallow them up. Mr. Wilson saw no incohi- 
patibility between the national and state governments, provided the latter 
were restrained to certain local purposes, &c. (Id., pp. 163, 164.) 



THE LEGISLATURE— THE SEN" ATE. 145 

tnted to aid the nation by the exercise of a judgment, 
prudence, foresight and wisdom not supposed to be pos- 
sessed by a body of men elected by a local popular 
constitueucy. It was deemed wise to commit the selec- 
tion of senators to the legislatures of the several slates, 
because, it was argued, the legislatures will select their 
candidates from a class of men of higher standing, and 
better educated, than will the masses, if the selection be 
committed to them. When the legislature, representing 
the collected wisdom and dignitj^ of the commonwealth, 
select men to represent that wisdom and dignity in the 
senate of the nation, it is not to be supposed that it will 
select those who are below its estimated standard of 
ability and dignity suited to represent such body, but on 
the contrary, that it will take care to select from a 
class of men the most talented and distinguished in the 
state, to exercise the x>owers and discharge the duties 
pertaining to the highest deliberative body in the nation. 
And this anticipation of the fathers has hitherto been 
realized ; for it is safe and just to aflSrm of the United 
States senate, that, as a deliberative body, it has never 
been excelled in point of intelligence, ability and dignity, 
by any other deliberative body in the world. 

^ 300. It has been said that the very structure of the 
general government contemplated one partly federal 
and jjartly national. If by federal is meant that the 
state governments as political institutions, are repre- 
sented in, or can exercise any authority over, the general 
government, or that they have any authority of their 
own to exercise in respect to the general government, 
the proposition is denied. The argument that the people 
recognized the existence of the state governments, as 
sovereign and inde[)endent in respect to each other, and 
that they continued them, proves nothing in favor of the 
quasi federal theory. The people of the United States 
as a nation had sovereign authority to establish for 
themselves such government, and to authorize it to 
exercise such powers as they thought proper, independ- 
ent of the existence of state governments. And they 
likewise had authority to take from these state institu- 
tions the exercise of any or all powers, and to confer the 
same upon the general government ; and the fact that 
they did not do so, proves that they did not deem it 
expedient; not that they did not possess the authority. 
The same authority which instituted the general govern- 
ment, and conferred upon it the powers enumerated in 

19 



146 GOVERNMENT. 

the national constitution, could have conferred upon it 
all other governmental authority to the destruction of 
state jurisdiction. But the people deemed it best to 
institute the general government and confer on it the 
exercise of such public authority as was required to pro- 
vide for the common defense, security and welfare of 
the people as a nation ; and to commit the exercise of the 
residue of their authority, so far as the same was neces- 
sary for domestic purposes, to the local administration 
of the states. But in doing this, there was no acknowl- 
edgment, either expressly or by implication, that the 
states, as such, had any original inherent sovereignty, 
or were in any manner, as political institutions, to have 
a voice in the administration of the general government ; 
nor did they, in fact, give them away. New York as a 
state government is unrepresented at Washington, while 
New York as a people or part of the nation, is fully rep- 
resented there.^ 

'§, 301. The argument entitled to the greatest consider- 
ation in favor of giving to state legislatures authority 
to choose their own senators in the manner prescribed, 
had reference to the inevitable character of a body thus 
selected and constituted. There were duties to be 
devolved upon that body which required that the mem- 
bers thereof should be men of great wisdom, experience, 
discretion, judgment and dignity. These qualifications 
were of more importance to the people than that the 
members should come from any particular district or 
state. The duties to be performed by that body had 
respect to no particular locality within the nation. As 
a branch of the legislature they were to supervise the 

1 Says Story (Com. on Const., ? 69S) : " In the first place ttie very structure of 
the general government contemplated one partly federal and partly national. 
It not only recognized the existence of the state governments, but perpetuated 
them, leaving them in the enjoyment of a large portion of the rights of sov- 
ereignty, and giving to tlie general government a few powers. The general 
government was, therefore, upon the acknowledged basis, one of limited 
and circumscribed powers ; the states were to possess the residuary powers." 
What does all this prove in favor of tlie federative theory ? The people of the 
nation having sovereign authority, in virtue of tlieir existence as such, to 
create such institutions for administrative purposes as they deem best, create 
a national government, and confer on it jurisdiction over all matters pertain- 
ing to tlie external admlnisti'ation of national authority, and also over such 
matters pertaining to the internal administration, as local institutions were 
not competent to administer ; but in respect to sucli other matters of internal 
administration as pertain to the local and domestic interests of the people, 
the nation leaves them to tiie adra.inistration of the state governments, assert- 
ing, however, its authority over the whole subject. Now, where is to be found 
the recognition of state sovereignty, or state authority even, as independent 
of the nation? The idea that the states, as independent sovereignties, were 
entitled to representation in the administration of the general government, 
leads to constant error. The people of the states in respect to popular rights 
and interests wei-e represented; wliat was tliere in tlie government, independ- 
ent of the people, that required to be represented in the general government? 
and how, practically, are the states politically represented by the United States 
senators ? 



THE LEGISLATURE— THE SENATE. 147 

action of the house, and bring to the test of superior 
wisdom, great experience and calm judgment, the pro- 
posed enactments of the house of re[)resentatives. The 
senate was to constitute the liighest tribunal in the nation 
for trying impeachments ; it was to be associated with 
the president in making treaties with foreign nations ; 
also in appointing embassadors and other public minis- 
ters and consuls; judges of the supreme court, and other 
ofhcers. For these reasons it was deemed important to 
secure, as members of that body, the best men the 
nation could produce. Therefore, the selection of them 
was committed to the legislatures of the several states, 
rather than to a popular constituency. And experience 
has demonstrated that the state legislatures, in selecting 
men for senators of the United States, have usually 
sought them among those who, as a class, stood highest 
in the state for ability, intelligence, culture, refinement, 
worth and dignity ; and the character of the senate thus 
composed is such, that the bestowal of its office confers 
the highest honor upon the person receiving it.^ 

^ 302. He only can be deemed an honest and i)atriotic 
citizen wlio seeks the highest good of his country by the 
employment of every means in his power essential to 
that end. Observation and reflection teach that there 
are duties to be performed, essential to the well-being 
of society, which require, in their performance, the 
exercise of the highest qualities of the mind; qualities 
which can be found only in a class of men, fitted by 
natural endowment, and by the discipline of a liberal 
education and long practice. Tiie relations of society 
to the individual members thereof, impose duties of this 
character upon every government, whether popular, 
aristocratic, or monarchical. The good of society 
requires wise legislation to adjust and apply the princi- 
ples of justice to the numerous transactions of men, in 

1 "The scheme of an election by the legislature flnallj' prevailed by a unani- 
mous vote. The reasoning by whicli this mode of appointment was supported 
does not appear at large in any contemporary debate. But it may be gathered 
from the imperfect lights left us, that tlie main grounds were that it would 
immediately connect the state governments with the national government, 
and thus harmonize the wliole into one universal system." (Story's Com. on 
Const., ?2 703, 701.) It is admitted that remarks of that character were made by 
some of the members, but it seems impossible that any one should have been 
influenced by them; for it is not true that the state governments are connected 
with the general government through the senator elected by the state legisla- 
ture. For example, in what respect is the governor, as the chief executive of 
the state, connected witli the general government througli the senator elect? 
In wiiat respect is tire legislature of the state connected with the general gov- 
ernment through the senator elected by it? or in what respect is tlie judiciary 
of the state thus connected with the general government? If neither tlie 
executive, legislative or judicial departments of tlie state are connected with 
the general government through the United States senator, then in what 
respect is the government itself thus connected? 



148 GOVERNMENT. 

tlie infinitude of their relations to, and bearings upon, 
each other. The wisest and best cannot always fore- 
judge the evil results which measures, apparently 
innocent and simple, will produce if improperly imposed 
upon society as law. Therefore, every government 
approximating to a democracy, has found it necessary 
to provide, as far as possible, for the presence of this 
wisdom and discreet judgment, both in a branch of its 
legislature and on the bench. The principles of popular 
representation do not apply to either the senate, which 
is a quasi judicial body, nor to the bench. The judge 
upon the bench is required to know the law as obliga- 
tory upon all ; and to ascertain the facts requiring its 
application ; and then, honestly to pronounce the judg- 
ment of the law upon the facts as ascertained. He is 
to represent neither plaintiff nor defendant, neither 
town, county, or state; except in the character of impar- 
tial justice; bliud to every eonsideration except the 
wise and just application of the law to the facts of 
the case before him. He is not to know whether the 
subject of his judgment be a wise man or a fool; a 
saint or a sinner; a rich man or poor; dignified or 
mean ; black or white, constituent or stranger. Be he 
who or what he may, the duty of the judge to declare 
the law as applicable to the facts is the same. With 
what propriety, then," can a judge have a constituency ? 
What can he do for them as their representative ? what 
rights can he recognize in them, and award to them, 
that a judge not a representative is not bound to 
recognize and award? As a judge, is he to feel the 
presence of the people on the bench? Is he to be 
swerved from the discharge of his judicial duties by 
their influence or clamor ? Is he to remember that he 
owes his oflicial position to their suffrage? If so, by 
every principle sacred to justice, he is unfit to be a 
judge ; he deserves to be impeached, and be sent back 
to the political arena from whence he came. The people 
are their own worst enemies when they put politicians 
on the bench. They subvert their own liberties, and 
deprive themselves of the administration of exact jus- 
tice, when they adopt a mode of selecting judges 
which, from its nature, will not secure the wisest and 
best men the profession can produce ; which, from its 
nature, will put upon the bench men of quick sense to 
snuff the popular breeze, and to trim their judicial sails 
to catch its favor. 



THE LEGISLATURE— THE SENATE. 149 

^ 303. Similar considerations apply to the selection 
of senators of the United States. The welfare of the 
nation at large, as well as that of every citizen, requires 
that the senate of the United States be couiposed of 
men, who, from age, experience, ability, culture, dis- 
cipline, and sound judgment, shall be equal to any 
emergency that can arise. They are required to be 
statesmen of the clearest and broadest vision. They 
must be able to grasp and comprehend the scope of 
every question that can arise in the administration of the 
general government, both in respect to external or 
international rights and duties, and also in respect to 
those which pertain to the internal administration of 
national authority. Every member should be thor- 
oughly versed in the science of public and police law. 
He should be qualified to determine all questions of 
international law which are to be aided or modified by 
the treaties he advises and ratifies. He should under- 
stand the principles of political economy ; for by his 
judgment aud vote the nation is to be prospered or 
injured in all its fountains of wealth and prosperity. 
The senator should have no constituency but that 
of the highest wisdom, the most prudent discretion, the 
clearest insight aud the most comprehensive judgment 
of the state and nation. Such are the duties the consti- 
tution imposes upon him, and consequently such should 
be his qualifications. The founders of the general gov- 
ernment, therefore, manifested great wisdom and fore- 
sight when they provided for the election of senators by 
the legislature of the state. By no other means could 
they have secured the appropriate men to constitute the 
highest deliberative body of the nation, qualified to 
counsel the president, and take part with him in adjust- 
ing the relations between the nation and foreign powers. 

§ 304. While the principles of popular or democratic 
governments require that the people should be poten- 
l^ially present in the legislature, and that their voice 
should be heard, and their rights respected in the 
making of laws, their own well-being, and the welfare 
of society requires that no one should have a local con- 
stituency, who is selected to administer in departments 
of the government where the duties of the depart- 
ment will not consistently permit the influence of such 
constituency. Thus, the duties of the judicial oflfice 
admit of no popular influence ; they are the same, inde- 
pendent of all constituencies. To be in sympathy with 



150 GOVERNMENT. 

any on the subject of adjudication is a disqualification. 
The judge on the bench should feel that he belongs 
to the commonwealth as the dispenser of impartial 
justice to all. The principles of democracy requiring 
the potential presence of the people in the legislature to 
secure the enactment of laws just to all, require the 
absence of their influence on the bench, that impartial 
justice may be administered to all. Therefore, it is 
contrary to the nature of the judicial office, and to the 
spirit in which its duties are to be performed, that 
the incumbent should feel himself the representative of 
a constituency less numerous than the state at large. 
Public interests, and public and private justice imper- 
atively demand, that such method shall be adopted in 
the selection of judges, as will secure the ablest, wisest 
and best men for that ofiSce Avhich the state can pro- 
duce ; and experience proves that the larger and wiser 
the constituency, the more competent and responsible 
will be the representative. Commit the selection of 
judges to ward politicians, and ward politicians will be 
found on the bench. Commit their selection to the state 
legislature, and no man can be appointed who, in char- 
acter, ability and intelligence, is not a fair representative 
of the same qualities in the legislature. 

§ 305. Because the duties of the senatorial office 
required in the senator qualifications of character and 
ability, rather than those of a representative of a local 
constituency, the number to be selected from each state 
was determined with reference to the dignity and 
character of the senate, and not with respect to the 
principles of popular representation.^ Two from each 

1 "Each state, whether more or less populous, appoints two senators— a 
number which would liave been inconvenient if tlie votes in the senate were 
taken, as in the former congress, by states, when, if the delegates from a state 
were equally divided, the vote of tlie state was lost; and which, of course, 
rendered an uneven number preferable. But in the senate a numerical vote 
is taken in all cases, and the division of opinion among those who represent 
particular states has no influence on the general result. If the senate should 
be equally divided, the casting vote is given to the vice-pi-esident, whose office 
it is to preside in the senate. The equality of states in this respect is not per- 
haps defensible on the principle of representing the people, which ought 
always to be according to numbers; but it was the result of mutual concession 
and compromise in which the populous slates, enjoying the advantages of 
proportional numbers in the house of representatives, by which they were 
enabled to control the interests of the smaller states, yielded as a compensa- 
tion the principle of equality in this branch of the legislatui-e, enjoying in 
most respects equal, and in some respects greater powers. * * This composi- 
tion of both houses is peculiar to our country, and has been found in practice 
neither productive of schism nor deficient in energy. A perfect independence 
of sentiment has been uniformly manifested by the members, and much 
superiority to local interests and impressions particularly sought for in the 
senate have always been found there." (Rawle on the Constitution, pp. 
32, 33.) It seems strange tliat any one should mistake the real object for which 
the senate of the United States was established. It is in no p®iitical or per- 
sonal sense a representative body. It is representative only in the sense that 
its members ought to be " representative men," in respect to talent, integrity, 
intelligence and virtue. (Story's Com, on Const., § 702.) 



TPIE LEGISLATURE— THE SENATE. 151 

state gave them a body of twenty-six members, to bo 
l)residecl over by the vice-president'of the United States. 
This secured to the government the services of an able 
body of counselors, and tended to give to its adminis- 
tration, dignity, and to secure confidence in its wisdom 
and permanence. " It has not only been demonstrated 
that the senate, in its actual organization, is well adapted 
to the exigencies of the nation, but that it is a most im- 
portant and valuable part of the system, and the real bal- 
ance-wheel which adjusts and regulates its movements." 

S 300. The number of senators should be sufficiently 
large to insure that variety of knowledge, talent, expe- 
rience and practical skill essential to the" discharge of its 
various duties. No human genius or industry is ade- 
quate to all the vast concerns of government, if it be 
not aided by the power and skill of numbers. ^ Num- 
bers are also important to give to the body suflQcient 
firmness to resist the influence 'which the more popular 
branch will be solicitous to exert over them. Numbers, 
in many cases, confer power; and what is of equal 
Importance, they present greater resistance to improper 
influences. The senate being instituted as the conserv- 
ative power or balance-wheel in the government, seems 
admirably adapted to the end for which it was created. 

§ 307. The duration of the senatorial term is also 
flivorable to the stability and dignity essential to that 
body. From the classification of its members, one third 
of their number retire every two years, and their places 
are supplied with new members. It follows, therefore, 
that two-thirds of their number will always have the 
benefit of an experience, as members of that body, 
varying from two to four years. This will preserve 
great uniformity in its rules, familiarity witb the routine 
of its duties, and will secure accuracy and precision in 
all its movements. Thus, while the senate is made a 
perpetual body as a branch of the government, there 
is a continual change in the members composing it. 
There is a perpetual sameness in all that is essential to 
the end for which it was created ; but there are changes 
in its members, sufficient to keep them in mind of their 
responsibilities to the nation, and such, also, as to 
deprive them of motives to usurp and concentrate 
authority in their own hands ; yet its efficiency is not 
weakened by the constant influx of new and inexpe- 
rienced members. The system seems to be perfect in 

' story's Com. on Const., g 706, 



152 GOVERNMENT. 

its adaptation to all the requirements of sucli a body, 
connected with a popular government. 

% 308. The qualifications proposed for senators as dis- 
tinguished from those of the representatives, consist in 
a more advanced age, and a longer i^eriod of citizenship. 
A senator must be at least thirty years of age, and must 
have been a citizen of the United States nine years. 
The propriety of these requirements is explained by the 
nature of the senatorial trast ; wh^ch, requiring greater 
extent of information and stability of character, requires, 
at the same time, that the senator should have reached 
a period of life most likely to supply these advantages, 
and which — participating immediately in transactions 
with foreign nations — ought to be exercised by none 
who are not thoroughly weaned from the prepossessions 
and habits incident to foreign birth and education.^ 

§309. The vice-president of the United States is 
ex officio president of the senate ; but he has no voice 
in their deliberations, and can vote only in case the 
members present are equally divided. The senate are 
authorized to choose their other officers, and, in the 
absence of the vice-president, or while he shall be 
engaged in exercising the office of president of the 
United States, they are required to elect a president j>ro 
tempore.^ Each house is made the judge of the elec- 
tions, returns and qualifications of its own members ; 
and a majority of each house constitutes a quorum for 
general business ; though a less number may adjourn 
from day to day ; and also are authorized to compel the 
attendance of members, under such penalties as they 
may severally provide. 

g 310. The senate is a semi-judicial body — not that 
it can exercise judicial powers over subjects properly 
belonging to the sphere of judicial administration — 
but tile power to try all impeachments against high 
officials is, by the constitution, committed to its sole 
exercise. In the exercise of that power it sits as a 
high court, having authority to determine all questions 
of law and fact involved in pronouncing the guilt or 
innocence of the accused. When the president of the 
United States is on trial, the chief-justice presides. 
Ifrom the composition of the senate, it is a fit and 
appropriate tribunal to try and determine all questions 
of law and fact involved in the guilt of any public 
officer of the United States ; for among its members are 

1 Feaeralist, G2. 



THE LEGISLATURE— THE SENATE. 153 

always to be found the ablest lawyers and jurists of the 
nation. When trying an impeachment they are to be 
upon oath or affirmation, combining the duties both 
of the judge and jury, to hear and determine the law 
and the facts touching the matters in hearing. 

g 311. The congress thus constituted is required to 
assemble at least once in every year ; and until congress 
by law appoint a different day, that meeting is to take 
place on the first Monday in December.^ When thus 
assembled, they are independent of each other in their 
organization and the government of their respective 
bodies ; but neither house during the session can adjourn 
for a period more than three days, without the consent 
of the other body ; nor can they adjourn to any other 
place than that in which the two houses are setting.^ 

g 312. Each house is not only a judge of the election 
returns and qualifications of its members, but it may 
determine the rules of its proceedings, punish its mem- 
bers for disorderly behavior, and, with the concurrence 
of two-thirds, expel a member. The necessity for the 
existence and exercise of this power is founded on 
the principle of self-preservation. The constitution 
confers the power to punish in express terms, only for 
offenses committed by its members. But the same 
necessity requires its exercise in respect to persons not 
members ; and the supreme court of the United States 
have held that the house have authority to arrest and 
bring before it for punishment for contempt, other than 
its members.^ This power to punish extends only to 
imprisonment, which can continue no longer than the 
authority which imprisons. The imprisonment neces- 
sarily terminates with the adjournment or dissolution 
of congress.'* 

I Art. 1, ? 4, Const. U. S. s Id., art. 1, ? 5. 

3 In Anderson v. Dunn (6 Wheat., 204), the supreme court of the United States 
held that, " To an action of trespass against the sergeant-at-arms of the house 
of representatives of the United States, for an assault and battery and false 
imprisonment, it is a legal justification and bar to plead that a congress was 
held and sitting during the period of the trespass complained of, and that the 
house of representatives had resolved that the plaintiff had been guilty of a 
breach of the privileges of the house, and of a high contempt of the dignity 
and authority of the same, and had ordered that the speaker should issue his 
warrant to the sergeant-at-arms, commanding him to take the plaintiff into 
custody wherever found, and to have him before the said house to answer to 
the said charge ; and that the speaker did accordingly issue such a warrant, 
reciting the said resolution and order, and commanding the sergeant-at-arms 
to take the plaintiff into custody, &c., and delivered the said warrant to the 
said defendant. By virtue of which warrant the defendant arrested the plaint- 
iff, and conveyed him to the bar of the house, where he was heard in his 
defense touching the matter of the said charge, and the examination being 
adjourned from day to day, and the house having ordered the plaintiff to be 
detained in custody he was accordingly detained by the defendant until he 
was finally adjudged to be guilty, and convicted of 'the charge aforesaid, and 
ordered to be forthwith brought to the bar and reprimanded by the speaker 
and discharged from custody, and after being thus reprimanded was actually 
discharged from the arrest and custody aforesaid." 

■1 1 Kent's Com., 236 and note. 
20 



154 GOVERNMENT. 

§ 313. The times, places, and manner of holding 
elections for senators and representatives are to be 
prescribed in each state by the legislature thereof; but 
the congress may at any time, by law, make or alter 
such regulations, except as to the place of choosing 
senators,^ This provision of the constitution gives to 
the general government full power to provide for main- 
taining itself in both branches of the legislature, should 
a state be disposed to subvert its constitutional exist- 
ence. Congress could by law provide for the election 
of members to the house of representatives, by fixing 
upon the time and place for holding the election, and by 
prescribing the manner of holding the same ; and could 
make all laws necessary and proper for such purpose. 
It could also, if necessary, determine by law the time 
and manner of electing the senator ; and could, by 
law, require the legislature of a state to come together 
and elect a senator in accordance therewith ; and they 
could make all laws necessary and proper to compel a 
compliance with such requirement.^ The constitution 
has imposed a duty npon the legislatures of the several 
states, and made it supremely binding upon them. 
They are required b}^ the same constitution to take an 
oath of office to perform that duty ; and without taking 
that oath they cannot qualify as members. Should the 
members refuse to perform this duty as required by 
the constitution and the laws of congress in respect 
thereto, there is a supreme judiciary to apply the law, 
and a supreme executive to enforce its mandate. 

§ 314. Each house is required to keep a journal of its 
proceedings, and from time to time to publish the same, 
excepting such parts as may, in their judgment, require 
secrecy. The object of this requirement, in part, at 
least, is to give the people an opportunity of examining 
particularly into the official conduct of the members of 
the congress, with a view of holding them to a strict 
accountability, and to enable the constituent and nation 
to know the position and action of each member npon 
every important measure. A provision for entering the 
yeas and nays of the members upon the journal at 
the desire of one-fifth of the persons present, is also 
inserted in the constitution.^ 

g 315. The senators and representatives are to receive 
a compensation for their services, to be ascertained by 

1 Art. 1, § 4, Const. U. S. a Rawle on ttie Constitution, p. 42. 
c Art. 1, § 5, Const. U. S. 



LEGISLATIVE POWERS AND DUTIES. 155 

law, and paid out of the treasury of the United States. 
Except for treason, felouy'aud a breach of the peace, 
they are privileged from arrest duriug- their attendance 
at the session of their respective houses, and also in 
going to and returning from the same. Nor are they 
to be called in question in any other place for any speech 
or debate in either house. During the continuance of 
the official term of either the senator or representative, 
they may not be appointed to any civil office under the 
authority of the United States, which shall have been cre- 
ated, or*^ the emoluments of which shall have been 
increased during such time ; and no person holding any 
office under the United States can be a member of either 
house during its continuance.^ 



OHAPTEE IX. 

LEGISLATIVE POWERS AND DUTIES. 

§ 316. All legislative powers granted to the general 
government are vested in congress, and it is authorized 
to make all laws necessary and proper for carrying into 
execution all the powers vested by the constitution in 
the government of the United States, or in any depart- 
ment or officer thereof. The constitution has, in the 
most general terms, instituted the several departments 
of the government, and given guides to the proper 
administration thereof. It has vested it with powers to 
exercise all the functions of government over certain 
specified subjects. But it requires the legislation of 
congress to define and determine the mode of its action, 
and the details of its administration; so that practically 
every department and ofticer of the government, in the 
exercise of the powers committed to either, are under 
the direction and control of congress. The constitution 
vests in a president of the United States the executive 
powers of the government; and points out in general 
terms the manner of his election, and induction into 
office. But it is necessary for congress to regulate and 
determine the mode of executive administration. The 
constitution vests the judicial power of the United 
States in one supreme court, and in such inferior courts 
as congress from time to time may ordain and establish. 
But the organization of the supreme court in all its 

1 Art. 1, i 6, Const. U, S. 



156 GOVERNMENT. 

details, is necessarily the subject of legislation, and 
consequently these details are to be determined by con- 
gress. All the several departments of tbe government 
are to be administered according to law; and the laws 
of their administration are to be determined by congress. 
This necessity imposes upon the legislative department 
the supervision of all the others ; and, although it is the 
constitutional duty of the president to see that the laws 
are executed, it is the duty of congress to see that he 
has the necessary means, and that he performs his con- 
stitutional duty. 

g 317. The legislative department of a government, 
more than any other, eminently represents the sover- 
eignty of the people. It is necessarily required to be 
present by its laws, in every other department, and to 
provide for the faithful and just administration of the 
duties thereof. It stands in the place of the people, and 
must have their wisdom and unlimited discretion, in 
respect to all subjects committed to its jurisdiction. It 
must be a department with Argus eyes, seeing the 
relations, dependencies, influences, and needs of society 
in all its parts ; it must have wisdom to discover the 
laws necessary to regulate and harmonize the jarring 
and discordant elements; and discretion to adapt means 
to that end. The true mission of the legislator is to 
discover the natural laws incident to every condition 
and relation which can exist in society ; and to devise 
means by which such laws can have just sway without 
interruption. For every individual being, as well as 
every atom of matter, is the subject of natural law, and 
can be regulated and controlled harmoniously only in 
accordance with such laws. The Infinite Father and 
Divine Architect of the universe is omnipresent in 
every department of existence by the omnipotence of 
his power, in the operations of these natural and neces- 
,sary laws, and the highest good of all requires that 
these natural laws should be understood and observed. 
Hence, the wise legislator, if he would regulate by law 
the commerce and trade of society, will first ascertain the 
natural laws pertaining to commerce and trade, and 
then adapt his legislation thereto ; and thus it is in 
respect to every branch of industr}' and every depart- 
ment of business. 

g 318. The legislative department of government is 
necessarily intrusted with the exercise of a larger dis- 
cretion than any other. It is impossible to foresee the 



LEGISLATIVE POWERS AND DUTIES. 157 

powers which it may become necessary for the govern- 
ment to exercise to preserve itself and the society over 
whose interests it presides. For these reasons the legis- 
lative department should be connected immediately with 
the people, and should be in constant communication 
with them. One branch, at least, should take its mem- 
bers from every district in the state or nation, that the 
observation, information, interest and discretion of 
the people may be present in the legislature to suggest, 
urge and act for the particular occasion. There are 
certain rights of the individual and public which should 
be so guarded by constitutional bulwarks that even the 
legislature cannot invade them. There are certain 
fundamental principles so essential to the welfare of the 
individual and the well-being of society, that even 
the people themselves should be deemed incapable of 
disregarding them. The jurisdiction of each depart- 
ment of the government should be well defined — that 
of the legislature as well as of the others. But within 
its assigned sphere or jurisdiction, and in respect to 
proper subjects of legislative control or direction, it 
should be permitted to exercise large discretion. Where 
vested rights are not infringed, Avhere fundamental 
principles are not endangered, and especially where the 
common welfare demands legislative action, there 
the maxim, saliis reipuMicce est suprema lex, applies, 
and the legislature will be required to exercise all 
necessary discretion within the limits of its assigned 
jurisdiction. Its paramount duty is to see that the 
commonwealth sustains no detriment, if it be within 
the reasonable scope of its authority to prevent it by 
proper legislation. The reason why the legislative 
department of government should be permitted to 
exercise such large discretion, is founded in the neces- 
sity of the case ; and that is, it cannot perform the 
necessary duties of its office in providing for the com- 
mon security and general welfare of the people without 
the exercise of a liberal discretion. 

g 319. The reasons requiring the exercise of a broad 
discretion by the legislative department of government 
in administering within the sphere of its jurisdiction, 
do not apply to other departments. In general, the 
judiciary dei)artment is not called upon to act until 
the legislature has acted. It is not called upon to 
interpret and apply the law, until the legislature have 
enacted the law to be applied. In fact the judiciary 



158 GOVERNMENT. 

cannot exist or aot until created by legislative action 
and direction. The duty of the judge is limited to 
ascertaining the law as it exists, and applying it to the 
facts as ascertained iu each particular case ; while 
the duty of the legislator requires him to ascertain 
what laws are necessary for the welfare of individuals, 
and the well-being of society, and to enact them in 
suitable form. The executive department like the 
judiciary, has less occasion to exercise a large discre- 
tion, than the legislative. In general, its duties are all 
regulated and defined by law, so that there is little left 
to executive discretion. Its duties begin when the 
legislature or judiciary have completed theirs. When 
required to execute an order, judgment or decree of the 
court, the necessary directions are given by the legis- 
lature or the court, or by both. When required to 
execute the provisions of a statute without the inter- 
I)osition of a court, the manner of its execution is 
pointed out and determined by law. But the legislature 
has no power or department to go before and prepare 
its way, and make its paths straight. Hence, it must 
always be very near the people, to learn from them and 
their needs, the interpretation of its duties and powers 
within the general limits assigned by the constitution. 

§ 320. From this ever-present necessity of liberal 
discretionary powers in the legislative department, has 
arisen the doctrine of the absolute supremacy of the 
legislature over all other departments of government, 
and, indeed, over all other authority. Says Sir Edwaed 
OoKE, "the power and jurisdiction of parliament" — 
the legislative department — "is so transcendant that 
it cannot be confined, either for causes or persons, with- 
in any bounds. It hath sovereign and uncontrollable 
authority in the making, confirming, enlarging, restrain- 
ing, abrogating, repealing, reviving and expounding of 
laws, concerning matters of all possible denominations, 
ecclesiastical or temporary, civil, military, maritime or 
criminal, this being the place where absolute despotic 
power, which must in all governments reside somewhere, 
is intrusted by the constitution of these kingdoms. All 
mischief and grievances, operations and remedies that 
transcend the ordinary course of the laws, are within 
the reach of this extraordinary tribunal. It can regu- 
late or new-model the succession to the crown, as was 
done in the reign of Henry YIII and William III. It 
can alter the established religion of the land, as was 



LEGISLATIVE POWERS AND DUTIES. 159 

done in a variety of instances in the reign of Henry 
VIII and his three children. It can change and create 
afresh the constitution of the kingdom and of parlia- 
ment themselves, as was done by the act of union, and 
the several statutes for triennial and septennial elections. 
It can, in short, do everything that is not naturally 
impossible, and, therefore, some have not scrupled to call 
its power by a figure rather too bold, the omnipotence 
of parliament. True it is, that what the parliament 
doth, no authority upon earth can undo ; so that it is a 
matter most essential to the liberties of this kingdom, 
that such members be delegated to this important trust, 
as are most eminent for their probity, their fortitude 
and their knowledge." ^ 

§ 321. The authority ascribed by Lord Coke to par- 
liament, as the depositary of absolute power for purposes 
of legislation, according to the American theory, belongs 
to the people in their original or national sovereignty, to 
be exercised by them or by those to whom they have 
delegated the authority to exercise it. The people as a 
nation being sovereign and independent of all other 
earthly authority, can, if they will, exercise the absolute 
authority ascribed to parliament. They are above con- 
stitutions, and what they do no other authority on earth 
can undo, while they continue as a sovereign nation. 
They can ordain and establish constitutions of govern- 
ment ; and they can revoke them at pleasure. They 
can set up constitutional barriers to the exercise of 
legislative authority over particular subjects, and they 
can remove them at pleasure. In the language just 
cited, they have *' sovereign and uncontrollable author- 
ity in the making, confirming, enlarging, restraining, 
abrogating, repealing, reviving and expounding of laws 
concerning matters of all possible denominations, 
ecclesiastical or temporal, civil, military, maritime or 
criminal." 

g 322. It is not claimed that the general government 
possesses this absolute and uncontrollable authority 
concerning matters of all possible denominations. On 
the contrary, the general government can exercise 
authority over no subject not expressly or by implica- 
tion, committed to its jurisdiction. But over subjects, 
committed to its jurisdiction, it has the absolute 
authority to legislate ascribed to parliament ; that is, it 
Las the authority of the people, and the discretion and 

] Black. Com., pp. 160, 161; 4 Coke Inst., 36. 



160 GOVERNMENT. 

power of the people to require and do whatever the 
people themselves could require and do in the premises. 
The constitution euumerates in general terms, the pow- 
ers of congress over certain subjects; and leaves to it 
the most unlimited discretion as to the manner of exer- 
cising those powers within the meaning of the terms 
" necessary " and " proper ;" and, lest there should be 
any doubt as to the right of congress to exercise implied 
IDOwers wherever and whenever they may be necessary 
and proper to the discharge of duties imposed, or the 
execution of. express powers given, it provides expressly 
for their exercise. Congress, then, in the exercise of 
the duties and powers imposed and conferred by the 
constitution, is as absolute iu its authority and discre- 
tion as are the people themselves ; subject only to such 
restrictions and limitations as are contained in the con- 
stitution. 

g 323. In the institution of the general government, 
the people assigned to it the subjects of its particular 
jurisdiction, and left to it the exercise of tbeir author- 
ity and discretion in legislating upon those subjects, 
restrained, however, by certain important i3rohibitions 
contained in the constitution ; which are, that in the 
exercise of legislative authority, congress should make 
no law respecting an establishment of religion, or 
prohibiting the free exercise thereof; or abridging 
the freedom of speech, or of the press ; or the right 
of the people peaceably to assemble and to petition 
the government for a redress of grievances. That the 
right of the people to keep and bear arms should not 
be infringed. That no soldier in time of peace, should be 
quartered in any house without the consent of the owner, 
nor in time of war, except in a manner to be prescribed 
by law. That the right of the people to be secure in 
their persons, houses, papers, and effects, against unrea- 
sonable searches and seizures, should not be violated. 
That no warrants should issue but upon probable cause 
supported by oath or affirmation, particularly describing 
the place to be searched, and the person or thing to be 
seized. That no person should be held to answer for a 
capital or otherwise infamous crime, unless on present- 
ment or indictment of a grand jury, except in cases 
arising in the land or naval forces, or in the militia, 
when in actual service in time of war or public danger ; 
nor should any person be subject for the same offense 
to be twice put in jeopardy of life or limb, nor compelled 



LEGISLATIVE POWERS AND DUTIES. 161 

in any criminal case, to be a witness against himself, 
nor be deprived of life, liberty, or properly, without due 
process of law ; nor should private proi)erty be taken for 
public use without just compensation. That in all 
criminal prosecutions, the accused should enjoy the right 
to a speedy and public trial, by an impartial jury of the 
state or district wherein the crime was committed, which 
district should have been previously ascertained by law ; 
and to be informed of the nature and cause of the accu- 
sation ; to be confronted with the witnesses against 
him ; to have compulsory process for obtaining wit- 
nesses in his favor, and to have the assistance of counsel 
for his defense. That the right of trial by jury should 
be preserved in suits at common law, when the value 
in controversy should exceed twenty dollars, and that 
no fact tried by jury should be reexamined in any court 
of the United States, otherwise, than according to the 
rules of common law. That excessive bj^l should not 
be required, nor excessive fines be imposed, or cruel 
and unusual punishment be inflicted. That the privi- 
lege of the writ of habeas corpus shall not be suspended, 
except where in cases of rebellion or invasion the public 
safety might require it ; that no bill of attainder or 
ex post facto law should be passed ; no capitation or other 
direct tax should be laid, unless, in proportion to the 
census or enumeration therein required ; that no tax or 
duty should be laid on any article exported from any 
state ; that no preference should be given by any regu- 
lation of commerce or revenue to the ports of one state 
over those of another ; nor should vessels bound to or 
from one state be obliged to enter, clear or pay duties 
in another ; that no money should be drawn from the 
treasury but in consequence of appropriations made by 
law ; that no title of nobility should be granted, &c. 
Subject to these restrictions and prohibitions, congress 
has all the authority and discretion of the people to 
legislate upon subjects committed to its jurisdiction, 
which in spirit, embraces every subject essential to 
national existence, safety and welfare. 

g 324. There is no danger to the public welfare to be 
apprehended from an abuse of this legislative authority 
committed to the congress — because, virtually, it is the 
exercise of the authority of the y)eople themselves by 
their immediate representatives, fresh from their pres- 
ence, and instructed as to their duty. It is not to be 
overlooked that the house of representatives is composed 
21 



162 GOVERNMENT. 

of members coming from every district in the nation, 
by the expressed suffrage of the people, renewed every 
two years, and yearly instructed in the wishes and needs 
of their particular constituency : so that the people are 
as fully represented in congress, and are as potentially 
present there to legislate upon the subjects committed 
to the jurisdisdiction of the general government, as 
they were in the conventions which framed and adopted 
the national constitution. To object to the exercise of 
a liberal discretion by congress, in legislating for the 
nation, is, virtually, to object to its exercise by the peo- 
ple themselves. 

g 325. In making laws the senate and house of repre- 
sentatives possess equal authority. Each can originate 
bills, except as to revenue bills. The constitution pro- 
vides that all bills for raising revenue shall originate in 
the house of representatives ; but the senate may pro- 
pose or concj^ with amendments, as on other bills. ^ 
There can belittle question as to the kind of bills to 
which reference is here made. They are bills to levy 
taxes upon the people ; and not such bills as may result 
incidentally in creating a revenue. It cannot be sup- 
posed that a bill to provide for the sale of the i)ublic 
lands, or to sell public stocks, or to establish a post- 
office or a post road is included in this prohibition, 
although as a result, money may thereby come into the 
public treasury. 

g 326. Such being the meaning of the expression, 
" all bills for raising revenue," the reason is obvious 
why they should originate in that branch of the legis- 
lature in which the people are fully represented. The 
constitution is framed upon the hypothesis, that the 
people are imminently present in the house of rep- 
resentatives. That all occupations, professions and 
interests have their guardians and advocates there. 
That the needs, impulses and demands of every district 
in the nation are fully represented. If a revenue is to 
be raised by a levy upon the industry of the nation, who 
can know so well how to equalize the burden as the 
representatives of the people, coming from every dis- 
trict, and familiar with every interest ? Who will feel 
so immediately the responsibilities to be assumed in 
levying a tax upon the industry and property of the 
people, and will be able to indicate so perfectly the effect 
of any proposed measure upon the branch of industry 

1 Art. 1, 2 7, cl. 1, Const. U. S. 



LEGISLATIVE POWERS AND DUTIES. 163 

he represents, as the immediate representative of the 
people ? If the burden is to be imposed npon the peo- 
jjle, they are the proper ones to say how much, and 
how it shall be imposed. For reasons similar to these, 
the British house of commons had the right and inivi- 
lege that all grants of subsidies and parliamentary aids 
should begin in their house. The reason assigned was, 
that the supplies are raised upon the body of the people, 
and, therefore, it was proper that they alone should have 
the right of taxing themselves.^ 

S 327. Although the senate cannot originate a revenue 
bill, it can propose and concur in amendments. There 
are reasons why the senate should participate in matur- 
ing these, as well as other bills. They, too, are citizens 
of the states and nation ; and are equally with the people 
interested in all revenue bills. Being elected }\y the 
state legislatures, they have no popular constituency. 
Holding their office for the term of six years, they 
are not so familiar with the mass of the people, and do 
not feel so immediately their responsibilities to them. 
Therefore, they cannot be supposed to be so intimately 
and personally connected with every local district, or so 
well acquainted with local interests as the immediate 
representatives of these interests and districts. For 
these reasons, the se^iators are not as well qualified to 
suggest all the details of a tax bill which is to bear 
equally upon all the localities of the nation. They are 
not so familiar with all the interests to be reached, and 
the i)articular burdens to be increased here or lessened 
there. But while they are not qualified for the details 
of such a bill, they are eminently qualified to discuss 
the general principles to be observed in framing it; and, 
being themselves a part of the people who are to bear 
the burden to be imposed, it is wisdom to permit, and 
it is their just right to be permitted, to participate in 
maturing such bill, by suggesting and concurring in 
amendments thereto. 

g 328. Although all legislative power, granted to the 
general government is, by the constitution, vested in 
congress, yet, before a bill can become a law, after it has 
passed both houses of congress, it must be presented to 
the president for his approval and signature. If he 
approve of it he signs it, and it becomes law. If he do 
not approve it, he returns it with his objections to the 
house in which it originated. The objections of the presi- 

1 1 Black. Com., 169. 



164 GOVERNMENT. 

dent are tlien required to be entered at large upon their 
journal, and they proceed to reconsider the bill. If, 
after such reconsideration, two-thirds of the house agree 
to pass the bill notwithstanding the president's veto, it 
is then sent, together with the objections, to the other 
house by which it is required to be reconsidered. Then, 
if approved by two-thirds of that house also, it becomes 
law, notwithstanding the president's veto. In these 
cases the votes of both houses are required to be by 
yeas and nays, and the names of the members voting 
for or against the bill are required to be entered on 
the journal of each house respectivelj''. The president 
has ten days to examine any bill before he is required 
to return it. If he should not return a bill within teu 
days, Sundays excepted, after it has been i)resented for 
his approval, it becomes a law, the same as if approved 
and signed by him. But, if congress should adjourn, 
thereby i3reventing the return of such bill withiu ten 
days, it would not become law.^ 

g 329. Tliere are two principal reasons assigned why 
this qualified veto power should be conferred on the 
president of the United States, requiring after its exer- 
cise, a two-third vote of each of the houses of congress 
before the proposed measure can become law. The 
first reason assigned is, that there is danger to be 
apprehended from the encroachments of the legisla- 
tive department upon the executive; and, therefore, 
this qualified negative is necessary to enable the presi- 
dent to protect his office in the discharge of its executive 
duties. The second reason assigned is, that the rights 
of the people will be more perfectly secured by intrusting 
the exercise of this power to the president than they 
would otherwise be, by permitting congress by a majority 
vote to determine what measures shall become law. The 
first theory of the existence and exercise of the veto 
power is taken from the British constitution and govern- 
ment, and has its origin and continuance in the peculiar 
theory and practice of monarchical governments. 

§ 330. The theory and structure of the government 
of the United States is so peculiarly its own, that it 
requires reasons peculiarly its own to explain or justify 
such provisions. The reasons why the king of England 
should possess an absolute veto power over the pro- 
posed laws of parliament, have not even a qualified 
application to the general government of the United 

1 Art. 1, § 7, cL 2, Const. U. S. 



LEGISLATIVE POWERS AND DUTIES. 165 

States, ordained, established and administered by the 
people themselves. In England the king is an essential 
branch of the legislative department, and is neither 
elected by, nor responsible to the people. The law 
ascribes to him the attribute of sovereignty or pre- 
eminence. He is said to have imperial dignity ; and 
in charters before the conquest he is frequently styled 
hasileus and imperator, the titles respectively assumed 
by the emperors of the east and west.^ His realm is 
declared to be an empire, and his crown imperial, by 
many acts of parliament. He is declared to be the 
supreme head of the realm in matters both civil and 
ecclesiastical, and, of consequence, inferior to no man 
upon earth, dependent on no man, accountable to no 
man. " Under every monarchical establishment, it is 
necessary to distinguish the ijrince from his subjects, 
not only by the outward j)omp and decorations of 
majesty, but also by ascribing to him. certain qualities 
as inherent in his royal capacity, distinct from, and 
superior to those of any other individual in the nation. 
For, though a philosophical mind will consider the 
royal person merely as one man appointed by mutual 
consent to preside over many others, and will pay him 
that reverence and duty which the principles of society 
demand ; yet the mass of mankind will Ije apt to grow 
insolent and refractory, if taught to consider their prince 
as a man of no greater perfection than themselves. The 
law, therefore, ascribes to the king, in his high political 
character, not only large powers and emoluments which 
form his prerogative and revenue, but likewise certain 
attributes of a great and transcendent nature ; by which 
the'4;;9eople are led to consider him in the light of a 
superior being, and to pay him that awful respect 
which may enable him with greater ease to carry on 
the business of government." ^ 

% 331. Beside this attribute of sovereignty, the law 
also ascribes to the king, in his political capacity, abso- 
lute perfection. The king can do no wrong ; that is, 
whatever is exceptionable in the conduct of public 
affairs, is not to be imputed to the king, nor is he answer- 
able for it personally to his people; for this doctrine 
would totally destroy that constitutional independence 
of the cuown which is necessary for the balance of 

1 " Rex est vicarius et minister Dei in terra ; omnis quidem sub eo est, ei ipse sub 
nulla, nisi tantuni sub Deo. Bracton, L. 1, c. 8. 
3 1 Bl. Com., 241. 



166 GOVERNMENT. 

power in the British constitution. It also means that 
the prerogative of the crown extends not to any injury ; 
it is created for the benefit of the people, and, there- 
fore, cannot be exerted to their prejudice.^ The inviola- 
bility of the king is essentially necessary to the free 
exercise of those high prerogatives which are vested in 
him ; not for his own private splendor and gratification 
merely, but for the security and preservation of the real 
happiness and liberty of his subjects.^ The king is not 
only incapable of doing wrong, but even of thinking 
wrong ; he can never mean to do an improper thing ; in 
him is no folly or weakness ; for the law will not cast 
an imputation on that magistrate whom it intrusts with 
the executive power, as if he were capable of intention- 
ally disregarding his trust; but it attributes to mere 
imposition those little inadvertencies, which if charged 
on the prince, might lessen him in the eyes of his 
subjects. 

% 332. Another attribute of the king's majesty is his* 
perpetuity. The king never dies. His personal death 
is called a demise ; which merely signifies the transfer 
of the royal character, prerogatives and imperial dig- 
nity to his regal heir, who is, eo instanti, king, to all 
intents and i)urp.os.es. These royal prerogatives invest 
the king, thus considered in his kingly capacity, as all- 
perfect and immortal, with such authorities and powers 
as constitute the executive department of the British 
government. This department is distinct from and 
independent of the legislative ; and is not responsible 
to the people for its existence or continuance. Accord- 
ing to the theory of the British constitution, the execu- 
tive powers are placed in the single hand of the Mrig, 
for the sake of unanimity, strength and dispatch. That 
if these powers were placed in many hands they wfeuld 
be subject to many wills; that many wills being dis- 
united and drawing diflferent ways, would create weak- 
ness in a government ; and to unite them and reduce 
them to one, would be a work of more delay than the 
exigencies of state will afford. That, therefore, the 
king is not only the chief, but properly the sole magis- 
trate of the nation ; all others acting by commission 
from, and in due subordination to him. These preroga- 
tives and powers, which belong to the king as the 
political head of the nation, are treated as individually 

1 Bl. Com., 246. 

s Christian's note to 1 Bl. Com., 247. 



LEGISLATIVE POWERS AND DUTIES. 167 

and personally his ; because the mass are deemed to be 
incai)able af distinguishing between his individual and 
political character. Thus, according to the theory of 
the British constitution, the executive powers of the 
nation are vested in the king alone ; who is supreme, 
who is perfect, and who never dies. And, although 
theoretically and philosophically, these attributes only 
j)ertain to the office, practically, they attach to the per- 
son of the king, and become his personal attributes, 
authority and powers. In theory, he reigns by divine 
right ; Dei gratia, not iwimli gratia; and such, also, is 
the theory of his responsibilities — not to the people, 
but to God alone. The government is his, the people 
are his subjects ; the regal style is, "my kingdom," 
" my realm," " my subjects," etc. 

§ 333. The king, according to the British constitution, 
being thus the immortal and perfect head of the nation, 
and the sole executive of its authority and power, is 
necessarily constituted a branch of the legislature of 
the realm. Laws can be made and repealed only by 
his authority. The powers of parliament are but a 
limitation of those of the king, imposed as a check to 
the despotic exercise of the royal will. It is true the 
king can make no new law without the consent of par- 
liament; but it is equally true that parliament can 
repeal no existing law without the consent of the king. 
His royal prerogatives and powers are his own, and he 
can wrap them around his royal person as a garment, 
and defy the constitutional powers of the British gov- 
ernment to disrobe him. The king is made a branch 
of the legislature, according to the British theory, for 
the purpose of preserving the balance between the 
executive and legislative departments of the govern- 
ment. The total union of the two departments, it is 
said, would be productive of tyranny ; the total dis- 
junction of them would, in the end, produce the same 
result. The legislative would soon become tyrannical, 
by making continual encroachments, and gradually 
assuming to itself the rights of the executive power. 
Thus, the long parliament of Charles I, while it acted 
in a constitutional manner with the royal concurrence, 
redressed many heavy grievances, and established many 
salutary laws. But when the two houses assumed the 
power of legislation in exclusion of the royal authority, 
they soon after, likewise, assumed the reigns of adminis- 
tration, and in consequence of these united powers 



168 GOVERNMENT. 

overturned both cliurch and state, and established a 
worse oppression than any they pretended to remedy. 
To hinder, therefore, any such encroachments, the king 
is himself a part of parliament; and as this is the 
reason of his being so, very properly, therefore, the share 
of legislation, which the British constitution has placed 
in the crown, consists in the power of rejecting, rather 
than in resolving, this being sufficient to answer the end 
proposed.^ 

§ 334. Here is the principle and the philosophy of the 
veto power as it exists in the British constitution. But 
neither the principle or philosophy have any possible 
application to the American governments. According 
to the theory of monarchy, the monarch is possessed of 
all political authority and power in divine right. But 
practically in the progress of governments, the lords or 
chief men found it necessary to have some check upon 
the arbitrary will and power of the monarch ; and a 
parliament of the chief men was instituted tor that 
purpose, which could not make laws, but which could 
demand a voice in the making of them. Ultimately, 
the people found it necessary to have some check upon 
both monarch and lords; and the commons were insti- 
tuted as a part of the legislature. The commons could 
not make laws, neither could the commons and lords 
together make them. They were instituted as a check 
upon the absolute authority of the monarch. They 
could propose the form and substance of a law as a sort 
of petition to the king, and he could say, in virtue of 
his sovereignty, yes or no, and it became a law or not 
accordingly. The American theory is quite the opposite 
of this. The peoi)le are sovereign, and the president 
subject. The prerogatives belong to the nation, not to 
their servants. The commons, aided by their peers in 
the nation, constitute the law-giving power in America. 
The legislative department is created by the people, and 
the members thereof are continually coming from, 
and returning to the people, taking their authority in 
virtue of the office conferred, as a public trust, to be 
exercised for the benefit of, and to be restored back, to 
them. Thus, the office of legislation here is not exer- 
cised by permanent incumbents, like the lords and king 
of England, and hence there is no temptation on the 
part of those administering for the time being to usurp 
the powers of government, and absorb all authority in 

ilBl. Com., 154. 



LEGISLATIVE POWERS AND DUTIES. 169 

the legislative department, to be used by their successors 
to oppress the people of whom they will then be a 
portion. It is true the execntive office is permanent ; 
but the incumbent is elected by the people for four 
years. Unlike the king, the president can do wrong, 
and may die. Consequently the executive incumbent is 
not permanent. The people have the authority to 
designate, once in four years, who shall administer in 
that department. The reasons assigned why the king 
should exercise the veto power in England have no 
application here. In this country, the executive needs 
no protection against the encroachments of legislative 
authority. All are equally interested in having the 
proper balance preserved, and they have the power to 
compel its preservation without the veto power of a 
Ijresident. 

§ 335. The second reason for intrusting the president 
of the United States with a qualified veto power is, that 
the rights of the people are more perfectly secured 
by the exercise of this power, than they otherwise 
would be if a mere majority of the two houses of con- 
gress were to determine what proposed measures should 
be law. This second reason has its basis in the assump- 
tion that the president may more perfectly comprehend 
the duties of a legislator upon a given question, or 
may better understand the rights and interests of the 
j)eople, than their more immediate representatives; or 
the combined wisdom of the representative men of the 
nation, who are placed in the senate to examine and 
judge of the fitness and propriety of any proposed law ; 
or upon the hypothesis that the president is less liable 
to improper influences than a majority of each of the 
two houses. Upon the soundness of these two latter 
propositions rests the propriety of this constitutional' 
provision, giving a qualified veto power to the president 
of the United States. It is to be observed that the 
effect of this provision is merely to require that a 
measure shall receive the sanction of two-thirds of the 
members of each house of congress, instead of a mere 
majority when the objections of the president are not 
interposed.^ 

1 This qualified negative of tlie president upon tlie formation of laws, is 
theoretically, at least, some additional security against tlie passage of 
improper laws, through prejudice or want of due reflection; but it was prin- 
cipally intended to give to the president a constitutional weapon to defend 
tlie executive department against the usurpations of the legislative power. 
(1 Kent Com., 210). This qualified negative of the president upon the acts and 

22 



170 GOVERNMENT. 

§ 336. It is to be remembered tliat tlie exercise of 
tliis power on the part of the president is liable to 
abuse. Whatever may be the theory of the exalted 
position and superior character of a president of the 
United States, the fact practically is, and ever has been, 
that the legislatures of the several states have uniformly 
placed in the United States senate learned, talented and 
patriotic men, who are every way as well qualified to 
discharge the presidential duties as the incumbent of 
that office ; and it is safe to affirm that every presi- 
dential incumbent, from the organization of the general 
government to the present, might have found in the 
senate of the United States, senators from whom it 
would be as appropriate to take advice as to give 
it, respecting senatorial duties. It is exceedingly improb- 
able that the many learned and patriotic men of congress 
would be more liable to commit errors in respect to 
measures of public importance, than the single incum- 
bent of the x^i'esidential office. But since there is a 
possibility of such error on the part of the congress, 
which may be corrected at the suggestion of the presi- 
dent, the power to require a reconsideration of the sub- 
ject, and a two-third vote of the two houses respectively, 
is wisely committed to the president, if he prove worthy 
of the trust. A wise, discreet and prudent president 
will very seldom exercise that power. The case must 
be one where the error of congress is patent, and where 
the public welfare imperatively demands interposition. 
But in the hands of a partisan incumbent, or a president 

resolutions of the two houses of the legislature, is Justified in the Federalist 
(No. 73), as follows: "The propensity of the legislative department to intrude 
upon tne rights and absorb the powers of the other departments, has been 
already more than once suggested; the insufficiency of a mere parchment 
delineation of the boundaries of each has also been remarked upon and the 
necessity of furnisliing each with constitutional arms for its own defense has 
been inferred and proved. From these clear and indubitable principles, 
results the propriety of a negative either absolute or qualified in the execu- 
tive, upon the acts of the legislative branches." See also the remarks of Judge 
Story to the same effect. (Story on Const., g 881). With proper deference to the 
opinions of these learned men, I must say there no where appears in any of 
their arguments the assertion of any principle, or reference to any facts 
sustaining their positions, Avhen applied to the theory and structure of the 
American government. The congress is always composed of a changing body 
of individuals. It seldom happens that in the house a majority of tlie old 
members are continued through more than one succeeding term. They are 
citizens of the states and nation, aqd are interested in preserving the exact 
balance of power between the several departments. Their continuance in 
congress is brief, and they become private citizens again. Now, it is obvious 
that a legislative body of men thus constituted can have no motive to invade 
the other departments, and assume executive powers. To do so would be 
putting weapons into the hands of their successors to injure and oppress 
themselves after their ten ure of office had expired. Reference to the British 
constitution, and the practical operations of the British government, have no 
possible application in this country. To apply the British theory of govern- 
ment to our own, the pi'esident and senate sliould propose the laws, giving to 
the people, as represented in the house, the absolute negative possessed by the 
king. For according to the monarchical theory, the parliament is a limita- 
tion upon the sovereignty of the king. &c. (See Ante, g § 329-333, inclusive). 



EXPRESS POWERS OF CONGRESS. 171 

with an ideal policy of Ms own, one to which, he commits 
all his power and patronage, this qualified veto is a 
mischievous and dangerous power, and it may well be 
questioned if the public interest has not suffered more 
than has been gained by its exercise. 



CHAPTER X. 

THE EXPEESS POWEES OF CONGRESS. 

§ 337. The eighth section of the first article of the 
constitution provides, that "the congress shall have 
power to lay and collect taxes, duties, imposts and 
excises, to pay the debts and provide for the common 
defense and general welfare of the United States;" but 
that " all duties, imposts and excises, shall be uniform 
throughout the United States." There has been much 
discussion as to the precise signification of this clause, 
whether it should be understood that congress had the 
power to lay and collect taxes, &c., in order that it 
might pay the debts and provide for the common 
defense and general welfare of the nation ; or, whether 
there were two distinct and substantial powers given, 
consisting, first, of the power to create the revenue ; 
and second, of the power to provide for the common 
defense and general welfare. It is immaterial which 
construction is given to the clause, so far as the extent 
of the expressed and implied powers thereby granted is 
concerned. The general government was instituted 
expressly for the purpose, among other things, of pro- 
viding for the common defense, and promoting the 
general welfare of the nation ; and this clause, at least, 
affirms, that the general government shall have power to 
raise the means by taxes, duties, imposts and excises, 
to accomplish that purpose. Here is a specific adapta- 
tion of a means to an end. Who, then, can deny that 
the end sought is within the scope of the powers of the 
government ; and, that it is the will of the people that 
all power, necessary and proper for the accomplishment 
of that end, shall be exercised? It is, consequently, 
immaterial whether the clause be read, that congress 
shall have power to lay and collect taxes, &c., for the 
purpose of enabling it to pay the debts and provide for 
the common defense and general welfare of the nation ; 
or, that congress shall have the power to lay and collect 



172 GOVERNMENT. 

taxes ; and also, to pay debts and provide for tlie com- 
mon welfara The people, in the institution of the 
general government, made it the duty of the govern- 
ment to secure that end ; and charged congress, as the 
legislative body of the nation, to provide, by law, 
the means necessary and proper for such purpose. 
Having the authority, they signified the intention ; and 
hence, the general government has the requisite power. 
g 338. The advocates of the difiereut constructions 
which have been given to this clause, attached special 
importance to the one or to the other, as affecting 
materially the power therein granted.^ The one, that 
the power to lay and collect taxes, &c., is limited to the 
specific objects named, to wit, to pay debts and provide 
for the common defense and general welfare. That this 
limitation is secured, if the law be construed as giving 
but one substantial power ; that is, the power to raise a 
revenue for the purpose specified ; but that the power 
to lay and collect taxes, &c., is unlimited, unless the 
latter part of the clause be construed as a limitation 
upon the former, &c. ^ On the other hand, the advocates 
of the construction, which makes the clause contain 
grants of two substantial powers, to wit, the power to 
raise the revenue, and the power to pay debts and 
provide for the common defense and general welfare, 
insist that, by such construction, our government is 
vested with unlimited power to provide for the defense 
and welfare of the nation, which it would lack but for 
such grant. But reflection, will satisfy any one that 
there is little to be gained or lost, to the powers of 

1 " Do the words, ' to lay and collect taxes, duties, imposts and excises,' con- 
stitute a distinct and substantial power ; and the words, ' to pay the debts and 
provide for the common defense and general welfare of the United States,' 
constitute another distinct and substantial power? Or, are the latter words 
connected with the former, so as to constitute a qualification upon them?" 
This has been a topic of political controversy: and has furnished abundant 
luiterial for popular declamation and alarm. If the former be the true inter- 
pi-etation, then it is obvious, that under the generality of the words, " to provide 
for tlie common defense and general welfare," tlie government of the United 
States is, in reality, a government of general and unlimited powers, notwith- 
standing the subsequent enumeration of specific powei's; if the latter be the 
true construction, then the power of taxation only is given by the clause, and 
it is limited to objects of a national character, "to pay the debts and provide 
for tlie common defense and general welfare." (Story's Com. on Const. U. S., 
g 907; see also, note to Story, § 908; see also. 2 U. S. Law Journal, April, 1826, p. 
451 et seq.) This work contains (p. 207 ei seq.) a very elaborate exposition of the 
doctrine. Mr. Jeffekson lias insisted that this was the federal doctrine; that 
is, the doctrine maintained by the federalists as a party. (4 Jefferson's Corres- 
pondence, 300.) Tlie assertion is incorrect, for the latter opinion was maintained 
by some of the most strenuous federalists at the time of the adoption of the 
constitution, and has since been maintained by them. (2 Elliot's Debates, 170, 183, 
195; 3 id., 262; 2 Am. Museum, 434; 3 id., 338.) It is remarkable, that Mr. George 
Mason, one of tlie most decided opponents of the constitution in the Virginia 
convention, held the opinion, that the clause to provide for tlie common defense 
and general welfare was a substantive power ; and that congress should have 
the power to provide for the general welfare of the union. But he thought, 
that the constitution should contain a clause in respect to all powers not 
granted being retained, &c. 



EXPRESS POWERS OF CONGRESS. 173 

the government, or to the security of the people, by the 
adoption of the one or the other of these constructions. 
One or the other is manifestly correct, and it matters 
not which. If the power of taxation is unlimited by 
the terms of the grant, as contained in this clause, it is 
only the power of the people to tax themselves; for it 
is to be remembered, that this government is to be 
administered by the people, comiiig from every state, 
and from every district of each state. If they lay and 
collect the tax, they alone have to pay it ; and there is 
little to fear from the powers of a government which 
is never to be separated from the authority of the peo- 
l)\e in its administration. The people will not be likely 
to oppress themselves beyond their own endurance. 
They will never have occasion to overthrow a govern- 
ment of which they have the sole administration. 
The lears and jealousies expressed, of the aggressions 
of the government upon the people, presuppose the 
separation of the government from the people, or its 
independence of the people. The constitution having 
secured to the people the administrative authority of 
the government, the people can trust the government 
as far as they can trust themselves. 

g 339. On the other hand, adopt the theory of limita- 
tion ; that the government can only lay and collect 
taxes, &c. for the purpose of paying debts and providing 
for the common defense and general welfare of the 
nation ; and that the administrators of their govern- 
ment, being the people of the nation themselves, have 
the discretion to determine what debts shall be con- 
tracted in providing for the defense and welfare thereof, 
and the limitation is a check of little value. There 
never will be an occasion to raise a revenue for any 
other purposes than those specified as such limitation. 
AVhen the wide range of subjects which may engage the 
attention of government looking to the common defense, 
and the general welfare of the nation come under con- 
sideration, it will be found that every thing pertaining 
to the duty of the government is necessarily included. 
It is the whole duty of every civil government to so 
exercise the powers committed to it, as to provide for 
the security and welfare of the people, which is included 
in the expression, " their common defense and general 
welfare." The people of the nation were providing for 
themselves a general government, which was to be 
intrusted with the exercise of their authority for the 



174 GOVERNMENT. 

special purpose of providing for tlie common defense, 
and promoting the general welfare, and they were 
securing to themselves the administration of that gov- 
ernment, and they intended to clothe it with every 
power essential to that end. The limitations of the 
powers committed to the general government had par- 
ticular reference to the subject of jurisdiction ; that the 
line of administration between it and the several states 
might be well defined, so as to avoid interference with 
each other. It is not to be supposed that the people 
had any misgivings as to their own ability to administer 
their own government, under the general authority to 
provide for the common defense and welfare of the 
nation. They were then, and the people ever after 
would be, the best judges of what measures were neces- 
sary for such purpose. 

g 340. It is to be observed that the limitations 
imposed upon the general government, by the specifi- 
cation of the subjects over which it shall have jurisdic- 
tion, extend only to the subjects, and not to the extent 
of its authority, or the manner of exercising it over 
those subjects. The people of the nation who were 
instituting the general government in their national 
sovereignty, had authority over all subjects of govern- 
mental administration ; as well over those of a local 
and domestic character, as over those pertaining to the 
general or national administration. They had authority 
to take any and all subjects from state jurisdiction, and 
to place the same under the jurisdiction of the general 
government. It was a question of expediency, and not 
one of authority. The questions discussed in adjusting 
the powers of the general and state governments, were 
questions of expediency. What powers are essential to 
a complete administration of national authority over 
subjects i)ertaining to national security and national 
prosperity? Whatever those subjects were, they were 
placed under the jurisdiction of the general government. 
What subjects of a local and domestic character merely, 
in respect to which the people of a particular state are 
only interested, and in the administration of which by 
the states, the security and prosperity of the nation will 
not be jeopardized? Whatever those subjects were, 
they were permitted to remain under state jurisdiction ; 
ami the people specified the subjects to be committed 
to the jurisdiction of the national government, because, 
being of a general character, they were comparatively 



EXPRESS POWERS OF CONGRESS. 175 

few, and easily enumerated. The national or general 
government is limited in its administration in no other 
sense, than in the enumeration of the subjects over 
which it has jurisdiction. But in respect to such sub- 
jects, for the purposes for which they were committed 
to its jurisdiction, that government has plenary author- 
ity ; that is, it has the unlimited authority of the nation 
in administering upon them. It has the same authority, 
and the same latitude of administration in respect 
thereto, that the states have in respect to subjects left 
to their local administration. 

g 341. It is said the general government is one of 
special powers ; and the state governments are those 
of residuary powers ; by which it must be intended — 
because such is the fact — that the subjects of which the 
general government has jurisdiction are enumerated in 
the constitution ; and the residue of subjects of govern- 
mental administration are left to the jurisdiction of the 
states, except so far as they are prohibited to them by 
the constitution. The difference, then, in the limita- 
tions of the general and state governments is simply 
this. The general government is limited to subjects 
enumerated in the constitution ; and the state govern- 
ments are limited l)y the subjects enumerated therein ; 
and in this respect, the one is as really a limited govern- 
ment as the other. The difference in the practical 
administration of the two governments consists in this : 
the general government finds its jurisdiction in the sub- 
jects enumerated ; and the state governments find their 
jurisdiction in the subjects not enumerated. But it is 
to be remembered, that this difference extends only to 
subjects of jurisdiction, not to authority and modes of 
administration. This is the same, whether applied to 
the general or to the state governments. 

§ 342. The general government, then, has the same 
powers over subjects committed to its jurisdiction as 
the states have over subjects left under their jurisdiction, 
to wit : all the governmental power and authority of 
the nation in respect thereto. To this conclusion there 
can be no valid objection, because these powers are to 
be executed by the nation itself When they instituted 
the general government, they did not commit their 
admiuistrative authority to other hands ; they reserved 
to themselves the right to administer, and they pro- 
vided for the potential and constant presence of the 
nation in its administration ; so that the same authority 



176 GOVERNMENT. 

wliicli instituted and empowered, administers. The 
states, likewise, administer in respect to tlieir domestic 
aftairs by the same authority, to wit : by the authority 
of the nation. The sovereignty of the states is to be 
found in the authority by which they are constituted 
their own administrators ; and also in the authority by 
which they administer. In respect to all states insti- 
tuted under the constitution, it is apparent that they 
take their authority to administer by the incorporating 
and enfranchising act of the nation. In respect to the 
original thirteen, the same in effect will appear in a 
subsequent chapter. 

§ 343. This view is fully sustained by the constitution 
itself In the enumeration of subjects committed to 
the jurisdiction of the general government, those sub- 
jects only were specified whicli necessarily pertained to 
the general administration ; and the powers of the gov- 
ernment over those subjects were given in the most 
general terms, as — " congress shall have power to lay 
and collect taxes," «&c. — " shall have power to regulate 
commerce" — "shall have power to define and ijunish 
piracies and felonies committed on the high seas" — 
"to raise and support armies" — " to provide and main- 
tain a navy," &c., &c. The constitution proceeds thus 
to enumerate subjects over which the general govern- 
ment through its congress should have power; and then 
concludes the section by providing that congress shall 
bave power to make all laws necessary and proper for 
carrying into execution the powers specified, and all 
other powers vested by the constitution in the govern- 
ment of the United States, or in any department or 
officer thereof. The states certainly can have no higher 
or fuller authority over subjects left to their jurisdiction 
than is here committed to the general government over 
subjects pertaining to its administration. What, then, 
is to be understood by the term, "the limited authority, 
&c., of the general government," as contradistinguished 
from the general authority of the states ? 

§ 344. The proposition is a plain one, that the people 
of the nation are as imminently present in the adminis- 
tration of their authority through the instrumentality 
of the general government, as the people of the state 
are in the administration of the state governments. 
And being thus present, they have full and perfect 
power to exercise all governmental authority over sub- 
jects committed to the jurisdiction of the general 



EXPRESS POWERS OF CONGRESS. 177 

government, wliicli is the sovereign and absolute author- 
ity of the nation. Being charged with the duty, and 
being specifically authorized to acquire the means for 
providing for the common defense and the general wel- 
fare of the nation, they have ample authority for that 
purpose, which is as unlimited and general as is the 
authority by which the state governments administer in. 
local and domestic interest. The proposition, also, is 
plain, that the expression so common that the general 
government is one of delegated xjowers, while the state 
governments possess and exercise original authority, is 
true only in the sense, that the subjects of national 
jurisdiction are enumerated, while those of the states 
are unenuraerated and residuary. And a third propo- 
sition is equally plain, that both the general and state 
governments are mere instruments of administration in 
the hands of the people, possessing no inherent author- 
ity of their own. 

§ 345. Says Judge Story, " the constitution was, 
from its very origin, contemplated to be the frame of a 
national government of special and enumerated powers, 
and not of general and unlimited powers." ^ Tbis is 
not denied. It was never proposed to commit to the 
general government as a branch of its internal adminis- 
tration, jurisdiction over subjects pertaining to the local 
and domestic interests of the states. In that respect it 
was intended to be, and is, limited to those interests 
pertaining to the general welfare of the people as a 
nation. And because it was necessary to enumerate 
the powers committed to the exercise of the general 
or the state governments, to avoid all uncertainty as 
to the boundaries of their respective jurisdictions ; and 
because from the nature of things, it would be impossible 
to enumerate in an instrument of reasonable length the 
multitude of subjects pertaining to the administration 
of government in respect to the local and family or 
domestic interests of society, the only practical defini- 
tion of the subjects of state and national jurisdiction 
which could be given, consisted in enumerating those 
which were committed to the general government, and 
thus defining the subjects of state jurisdiction as being 
residuary. But this mode of defining the subjects of 
general and local jurisdiction, is not to be construed as 
giving liberal powers to the states to administer in 
respect to local matters, and strict powers to the general 

1 story Com. on Const., ? 909. 
23 



178 GOVERNMENT. 

government to administer in respect to national inter- 
ests. On the contrary it is to be construed as giving 
the same general powers to the general government to 
administer in respect to subjects committed to its juris- 
diction, as to the states, over matters of a local and 
domestic character. 

§ 346. Judge Story continues : "If the clause ' to 
pay the debts and provide for the common defense and 
general welfare of the United States,' is construed to be 
an independent and substantive x>ower, it not only 
renders wholly unimportant and unnecessary the sub- 
sequent enumeration of speciiic powers, but it plainly 
extends far beyond them, and creates a general author- 
ity in congress to pass all laws which they deem for the 
common defense or general welfare. The enumerated 
powers would tend to embarrassment and confusion, 
since they would only give rise to doubts as to the true 
extent of the general power, or of the enumerated pow- 
ers." ^ The answer to this view is, that the enumeration 
of subjects by which to define the jurisdiction of the 
general and state governments, was as necessary to 
ascertain the limits of state jurisdiction as to determine 
the subjects of general jurisdiction. It was a question 
of administration merely, not of authority to be admin- 
istered. The general government was to have full 
authority to administer in all matters pertaining to the 
common defense and the general welfare, as distin- 
guished from that which was local in its nature and 
effect. And when it is considered that the people of 
the nation and the people of the states are the same ; 
that the national and state interests centre in the same 
individuals; that each are equally present in the state 
and national administration, by what principle of logic 
or law, or common sense, are the people of the nation 
to be denied the same liberal interpretation of powers, 
in the exercise of their administrative authority, as is 
accorded to the states in the administration of the same 
authority ? 

^ 347. Says Judge Stoey: "One of the most com- 
mon maxims of interpretation is, that, as an exception 
strengthens the force of the law in cases not excepted, 
so enumeration weakens it in cases not enumerated," ^ 
The error committed by the learned author in the appli- 
cation of the maxim above quoted, consists in supposing 
that the powers of congress are enumerated. The sub- 

1 story's Com. on Const., 909. 



EXPRESS POWERS OF CONGRESS. 179 

jects in respect to Tvliieli the powers of congress are to 
be exercised, are enumerated ; but the powers which 
congress is to exercise in legislating upon tbose subjects 
are not enumerated, but on the contrary, are committed 
to their broad discretion. The constitution enumerates 
subjects of jurisdiction only; giving congress power 
over them in the most general terms ; and then it con- 
cludes by declaring that congress shall have power to 
make all laws necessary and proper for carrying into 
effect those general powers, and all other powers by the 
constitution vested in the general government or in any 
department or officer thereof. 

g 348. The grammatical and the logical reading of 
the clause would clearly indicate that the authority to 
lay and collect taxes, &c., was given for the purposes 
specified, to wit: to pay debts, and to x>i'ovide for the 
common defense, and to promote the general welfare of 
the nation. But the power to create debts is unlimited. 
The measures to be adopted to provide for the common 
defense and the general welfare of the United States, 
are committed to the discretion of congress, so as they 
keep within the list of subjects enumerated as committed 
to national jurisdiction; and as all the powers com- 
mitted lO the general government are to be construed 
with reference to that end, and are to be administered 
by the people themselves, it is to be expected that they 
will so administer as to see that the public sustain no 
detriment; and that the common defense is provided 
for, and the general welfare promoted ; and that such 
latitude of construction be adopted as will enable them 
so to administer. 

§ 349. If there are no other cases which concern the 
common defense and general welfare, except those 
within the scope of the other enumerated powers, the 
discussion is merely nominal and friv^olous. If there 
are such cases, who is at liberty to say, that, being for 
the common defense and general welfare the constitu- 
tion did not intend to embrace them ? The preamble 
of the constitution declares one of the objects to be, to 
provide for the common defense and to promote the 
general welfare, and if the power to lay taxes is in 
express terms, given to provide for the common defense 
and general welfare, what ground can there be to con- 
strue the power short of that object. One of the best 
established rules of interpretation, one, which common 
sense and reason forbid to be overlooked, is, that when 



186 GOVERNMENT. 

the object of a power is clearly defined by its terms, or 
avowed in the context, it ought to be construed so as to 
obtain the object and not to defeat it. The circumstance 
that the power so construed may be abused, is no 
answer. All powers may be abused ; but are they then 
to be abridged by those who are to administer them, or 
denied to have any operation? If the people frame a 
constitution it is to be obeyed. Neither rulers nor 
judges have a right to cripple it, because, according to 
their view, it is inconsistent or dangerous, unwise or 
impolitic.^ 

g 350. The term "taxes," used in the constitution, is 
generical, and is thus used to confer plenary authority in 
• all cases of taxation.^ Taxes are of two kinds, direct 
and indirect.^ Direct taxes can only be apportioned 
among the several states according to the census returns ; 
as, representatives and direct taxes shall be apportioned 
among the several states which may be included within 
this union, according to their respective numbers.* 
Direct taxes are properly capitation taxes and taxes upon 
land. There seem to be no other subjects of taxation 
upon which taxes can be apportioned among the several 
states. Indirect taxes are such as affect expense or 
consumption, and are increased or reduced as the con- 
sumption is increased or reduced. Indirect taxes do not 
admit of apportionment ; but they are to be uniform 
throughout the United States on the subject taxed, as, 
all duties, imposts and excises shall be uniform through- 
out the United States.^ 

% 351. It is fully settled that under the grants of the 
constitution, congress has plenary power over every 
species of taxable property within the United States 
except exports. That there are but two rules prescribed 
for their government in the exercise of this power; the 
rule of uniformity in respect to indirect taxes, and 
of apportionment in respect to direct taxes. Duties, 

1 story's Com. on Const., § 924. 
s Rawle on Constitution, p. 74. 

3 1 Kent's Com., 255. 

4 Art. 1, a 2, Const. ; also ? 9, cl. 2. 

5 Art. 1, 1 8, Const. U. S. 

Direct, and indirect taxation have been the subjects of judicial investigation 
and adjudication. In the case of Hylton v. The Utiitecl States (3 Dallas, 171,) the 
power of Congress relative to taxation was fully discussed. By the act of 5th 
June, 1794, congress laid a duty upon carriages for the conveyance of persons ; 
and the question was whetlier it was a direct tax, within the meaning of the 
constitution. If it was not a direct tax it was properly laid within the grant 
of the constitution, which declares that all duties, imposts and excises shall 
be uniform; but if it was a direct tax, not being capable of apportionment 
among the several states according to numbers, it would be unconstitutional 
The court concluded and so held, that it was an indirect tax on expense oi 
consumption, and, therefore, properly laid according to the rule of uniformity. 
See 1 Kent's Com., p. 255, et seq. ; see also Loughborough v. Blake, 5 Wheat. 371.) 



• EXPRESS POWERS OF CONGRESS. 181 

imposts and excises, constitute the three kinds of 
indirect taxes, or taxes upon consumption or expense ; 
and capitation tax, and taxes upon lands constitute the 
direct taxes which are to be apportioned. And should 
there be any other species of taxes not included within 
the words, duties, imposts or excises, they would be 
laid by the rule of uniformity or not, as congress in its 
discretion might determine to be reasonable or proper.^ 

§ 352. Thus the constitution invests the general gov- 
ernment with plenary authority over the persons and 
property of the United States, for the purpose of pro 
viding the means for its administration. No government 
can be supported without the means of raising an ade- 
quate revenue ; and it must possess this power within 
itself, independent of all other authority. Of the 
amount of revenue to be raised, congress is the sole 
judge ; and well it may be, for in its halls the people 
of the nation are present by their immediate represent- 
atives, to declare what amount they may probably 
need, and how much they are able to pay. The 
authority to lay and collect taxes is one of the high 
prerogatives of sovereignty ; and it can proceed from 
that power only, which has authority to lay its hand 
upon the title by which individuals hold their property, 
and transfer it to others upon such conditions as it sees 
fit to impose. It virtually says, there is so much money 
laid upon that land, that horse, that carriage, to be paid 
by the owner thereof by such a time, or the title thereto 
will be transferred to the person who, according to the 
forms of law, does pay it. So much money is laid upon 
the head of each individual in the state or nation to be 
paid for the support of the government, and if not paid 
according to requirement, such and such penalties will 
be imposed. Can more absolute authority be exercised 
by any sovereign or despot ? The difference between a 
despotism and a democracy is not to be found in the 
sovereignty to command obedience, but in the will and 
power which administers. The despot exercises this 
absolute authority according to the dictates of his own 
will, without consulting the interests or wishes of others 
In democratic governments the people administer this 
authority according to the popular will, having regard 
to the public welfare. 

S 353. Congress may lay and collect taxes, duties 
imposts and excises, to pay the debts and to provide foi 

1 1 Kent's Com., p. 255. 



182 GOVERNMENT. \ * 

the common defense and general welfare of the United 
States. This implies a broad discretion in congress as 
to the purposes for which taxes, duties, imposts and 
excises may be laid and collected. But large as the 
discretion is, it is no larger than is safe and necessar}'- 
to commit to the congress, charged as it necessarily is, 
with providing for the security and welfare of the 
nation. It is to be remembered that the nation has 
no other institution intrusted with authority to provide 
for its common defense, and to promote its general 
welfare. So far as the state governments are con- 
cerned, they were never competent for any other than 
their own local and domestic administration. The laws 
of a state were never of any binding force beyond its 
own limits. It could pass no law, and make no pro- 
vision which could extend to all national citizens. 
"When, therefore, the people of the United States insti- 
tuted the general government, and committed the safety 
and welfare of the nation to its sole keeping, they 
intended to make it efficient for all purposes for which 
a national government was demanded. They intended 
to limit the subjects of national administration to those 
which, from the nature of things, were general and not 
local. Thus, in the grant of power to lay and collect 
taxes, the terms of the grant are broad enough to 
include every kind and description of tax that can 
be laid and collected ; to subject to this power every 
species of taxable property, and every individual 
inhabitant of the nation. In short the people intended 
to include in the terms of the grant, the whole taxing 
power of the nation for general or national purposes. 
•As the nation is to administer the government, it is not 
necessary to limit the discretion committed to congress 
to lay and collect taxes, &c., either as to the amount, or 
as to the purposes of its particular application. 

g 354. It has been denied that congress has authority 
to lay and collect duties, imposts and excises for any 
other purpose than raising a revenue ; that duties laid 
upon imports as a means of affording protection to 
domestic industry are not within the letter or spirit 
of the constitution, and, hence, that a protective tariff 
is uncDnstitutional. The force of this objection rests 
upon the broad assumption that the general welfare 
of the nation can never require that its agricultural, 
mechanical or commercial interests should be fostered 
and protected against the competition of cheaper labor 



EXPRESS POWERS OF CONGRESS. 183 

from abroad. For it cannot be denied that if the gen- 
eral welfare requires such protection to enable the nation 
to establish its industrial iudependence of foreign labor, 
foreign production, and the like, under the j)owers to 
regulate commerce, and to lay taxes, duties, imposts 
and excises, for the purpose of paying the debts and 
Ijroviding for the commou defense and general welfare 
of the nation, congress has ample authority to make 
such discriminations in laying duties, imposts and 
excises as will incidentally afford protection to domestic 
industry. And a nation that neglects thus to provide 
for its industrial independence of foreign labor, manu- 
facture and commerce, is liable to And itself weakened, 
crippled, and perhaps ruined, when its peaceful relations 
to foreign powers are disturbed by war. It is mani- 
festly a duty which the administrators of government 
owe to the i)eople, to establish as early as possible the 
industrial and commercial independence of the nation. 

% 355. Capitalists will not invest in any enterprise 
■where there is not a reasonable prospect of remuneration 
for the capital invested. They will not employ labor 
unless that labor be sufficiently remunerative to afford 
a reasonable use for the capital necessarily invested in 
its employment. It is the nature of capital in making its 
purchases, to seek a market where it can buy the cheap- 
est — in making its sales, to find the market where 
it can realize the largest and surest profits. If it can 
buy railroad iron in England at such a rate that it 
can transi)ort it to this country and deliver it where it is 
needed, for a less price than it can employ the labor 
of this country to produce it, it will be certain to do so; 
for capital knows no sympathy with the laborer, or 
patriotism for the country. It is exceeding cunning and 
supremely selfish. Hence, there is nothing to prevent 
the pauper labor of the old world from coming into suc- 
cessful competition with remunerative labor in America, 
except a tax laid upon its ijroducts sufficient, at least, 
to equalize in market, its price with the price of the like 
articles produced at home, at a remunerative rate for 
the capital and labor invested. 

§ 356. It is sometimes objected that this tax upon 
imported articles laid with a view to the protection of 
domestic industry against foreign labor, tends to a 
monopoly in domestic manufacturers — that by such tax 
they are enabled to demand, and the people are com- 
pelled to pay, a higher price for a given article of 



184 GOVERNMENT. 

foreign or domestic manufacture than would otherwise 
be req[uired if the protective duty were not laid. There 
can be no other monopoly than that which enures to 
the benefit of the American laborer against the j)auper 
labor of the old world, so long as the domestic produc-i 
tion is open to the free competition of domestic capital 
and domestic labor. The effect of the protective duty 
is to eqalize foreign and domestic labor, so that remu - 
nerative labor in America may successfally compete 
with pauper labor in Europe, in its application to the 
development of the natural resources of the country. 
By this protection, a national industrial independence 
will be established ; American labor will be employed 
at remunerative prices in every possible department of 
production ; the natural resources of the country will 
be developed — and individual and public prosperity 
will be promoted. And as the common defense and 
general welfare of the people would be provided for 
and promoted by such means, congress not only have 
the power, but it is their duty to adopt such measures 
as will naturally and necessarily secure to the people 
such a result. 

g 357. An industrial and commercial independence is 
essential to the welfare of every nation. Political inde- 
pendence can secure little safety or prosperity to a 
people dependent upon foreign nations for their trade, 
their commerce, or their manufactures. The proposi- 
tion scarcely admits of argument, that every nation 
should have the authority to impose a tax or tonnage 
duty on foreign vessels, for the benefit of its commerce; 
on the importation of the raw material, for the aid of 
its agriculture ; on imported fabrics, for the aid of its 
manufactures. It is the inherent right of every sover- 
eign nation to foster and build up every branch of 
industry, by such legislation as will enable its citizens 
and subjects to compete with the subjects of other gov- 
ernments in its own markets. If the subjects of other 
governments under a home policy, are required to labor 
for a few sous per day, and the products of their 
labor are to come into competition with American labor 
in American markets, certain results must follow. 
Either congress must impose such duties upon imported 
fabrics as will make their price equal to the cost of pro- 
duction here ; or it must convert capital from its love 
of gain, to "Christian charity"; or it must, in effect, 
reduce the price of American labor to the standard of 



EXPRESS POWERS OF CONGRESS. 185 

panper labor in other countries ; or the mamifacture 
of such fabrics must be abandoned, and a condition of 
industrial dependence be established. When the people 
instituted for their common defense and general welfare, 
the government of the United States, and gave it 
authority to lay and collect taxes, duties, imposts and 
excises, to pay the debts, and to provide for the common 
defense and the general welfare of the nation, and gave 
it authority also to regulate commerce with foreign 
nations, it cannot be supposed that the commercial and 
industrial interests of the people as a nation, were over- 
looked. The authority of the congress to protect the 
nation in its vital interests by laying discriminating 
duties upon imported fabrics, can with no propriety 
be questioned. It is a question of political economy, 
and not of national authority. 

g 358. Congress has power to borrow money on the 
credit of the United States.^ This power is granted in 
the most general terms ; and involves the broadest 
discretion of the law-making power of the nation. 
Borrowing money on the credit of the United States 
involves the contracting of debts against the United 
States, which may be provided for by the laying of 
taxes, duties, imposts and excises ; so that congress has 
the power to provide for the payment, as well as the 
contracting of debts. This discretion is safely com- 
mitted to the general government, because it is to be 
exercised by the people themselves who administer it. 
The power to borrow money is indispensable to the 
existence of the nation. It is liable to be involved in 
expenses, for the payment of which the immediate reve- 
nues of the government will not be adequate. It may 
be required to expend more in one year than could be 
supplied by the revenues of many years. In the civil 
war in which the government was involved in 1861 by 
the general rebellion of the slaveholding states, and 
which required the sacrifice of a quarter million of lives 
and the expenditure of over three thousand millions of 
dollars to subdue, this power to borrow money was 
indispensable to the existence of the government and 
the salvation of the nation. Giving to congress unquali- 
fiedly this power to borrow money on the credit of 
the United States and to provide for the payment of the 
same, places in the hands of the general government 

1 Art. 1, § 8, Const. U. S. 

24 



186 GOVERKMEFT. 

the means of providing for any contingencies in war or 
peace that may arise, and is another of the many indi- 
cations of the people to make the government of the 
nation permanent and complete. 

% 359. " Congress shall have power to regulate com- 
merce with foreign nations, and among the several 
states, and with the Indian tribes." ^ By this provision 
the commercial intercourse of the nation, and of every 
portion thereof, with other powers, is placed under the 
absolute direction and control of the general govern- 
ment. There has been much discussion as to the 
meaning and extent of the term commerce, and of 
the power to regulate it. It is to be remembered, that 
what have usually been denominated " the enumerated 
powers of the government," are more properly to be 
considered the enumerated subjects of general jurisdic- 
tion, over which the government has full powers. It is 
manifest that the people of the United States in the 
institution of the general government intended to com- 
mit to the congress the entire subject of commercial 
intercourse between the United States and other nations, 
and to deny to the several states any authority over 
the same. As a nation, sovereign and independent, it 
was indispensable that it should have full authority 
and power over the subject of commercial intercourse, 
between its subjects or citizens and other nations and 
their citizens or subjects ; and having this authority 
and power, it was necessary that provision should be 
made for its exercise. It would be a singular position 
to assume, that the nation as such, has this sovereign 
authority to regulate its own commercial intercourse 
with others ; but has made no provision for its exercise. 
There can be no doubt that the constitution confers 
upon congress i)lenary power over the whole subject of 
commerce, extending to every branch and department 
of the same. " In the term commerce are included not 
merely the act of buying and selling or exchanging 
merchandise, but also the navigation of vessels and 
commercial intercourse in all its branches. It extends 
to vessels by whatever force propelled or governed, 
and to whatever purpose applied." ^ Commerce as used 
in the constitution is a unit, every part of which is indi- 
cated by the term ;^ and the power conferred embraces 
everything essential to its existence and control. 

1 Art. 1, g 8, cl. 3, Const. United States. 

2 Rawle on Constitution, p. 76. 

3 Gibbons v. Ogden, 9 Wlieat., 1. 



EXPRESS POWERS OF CONGRESS. 187 

S 360. The term commerce as applied to the nation, 
must necessarily include all the dealings which the 
members thereof have with those of a foreign jurisdic- 
tion. In its broadest sense, it includes every transaction 
of those within its jurisdiction which reaches beyond 
into the jurisdiction of another power; and it includes 
also the means by which such transactions are carried 
on. The basis of this right to regulate and control 
these transactions, rests upon the hypothesis that every 
interest within the nation is subject to the use of the 
nation when the public welfare demands it ; that society 
as a whole is the lord and proprietor of all that makes 
np society ; including the right to command and to dis- 
pose of persons and things according as the highest 
good of society requires. ^'Saliis reinibliccB est suprema 
lex." This authority is asserted in the right to lay and 
collect* taxes, duties, imposts and excises ; in the right 
of eminent domain ; and in the many other assertions of 
absolute authority on the part of the nation, so essential 
to provide for the common defense and general welfare 
of the people. It is as though the nation were the 
common parent of all, and owner of everything within 
its jurisdiction ; and that individuals were its benefici- 
aries, individually enjoying the use of everything as far 
as possible, consistent with the highest liberty and 
equal rights of all and each. Society being a necessity 
l^ertaining to every individual ; and government being 
a necessity pertaining to society ; and this absolute 
authority over all being a necessity pertaining to gov- 
ernment, it is true that governments are ordained of 
God, and have his warrant for the exercise of all need- 
ful authority in the discharge of their duties and trusts. 

§ 361. From the nature of things, then, the nation 
must be possessed of this absolute authority to regulate 
and control all intercourse between its subjects and 
those belonging beyond its jurisdiction. Its guardian 
care over the interests of society requires it to provide 
appropriate measures for the ijrotection and security of 
its subjects at home and abroad. It is a duty which it 
owes to every member to protect him in the exercise 
and enjoyment of every natural and acquired right, 
against everything which threatens its subversion. If 
the citizen is required to serve his country with the 
oifering of his property and life, if need be, the country 
— government — can do no less than to protect the 
property and life of the citizen by the exercise of all its 



188 GOVERNMENT. " 

authority and power, if need be. If an oppressive gov 
erument makes its subjects paupers, and puts pauper 
labor into the market to compete with free labor, it is 
as really the duty of government to prevent such com- 
petitiou as to prevent any other species of wrong or 
robbery. It may not have power to aid or protect the 
foreign pauper, but it has the authority to protect its 
own people in its relations and intercourse with pauper 
communities. It cannot go beyond its own jurisdiction 
to correct evils unless the public safety imperatively 
demand it ; but it can close its doors to the admission 
of such evils within its own domain, and throw the 
mantle of its protection over all its subjects, by reg- 
ulating the intercourse to be permitted with such 
communities. 

g 362. In discussing the powers of the general gov 
ernment in this treatise, it is laid down as a fundamental 
principle that the people of the nation, in the institution 
of the general government, intended to provide for the 
plenary administration of their authority over all sub- 
jects, through the instrumentality of the general and 
state governments ; that the constitution ordained 
and established by them, divided the subjects of juris- 
diction between the general and state governments, by 
defining what subjects should be committed to the juris- 
diction of the general government; that in the enumera- 
tion of these subjects of general jurisdiction, they were 
governed by what to them seemed appropriate and 
necessary to the security, perpetuity and welfare of 
the nation ; that in respect to the subjects of general 
jurisdiction enumerated, they gave to the general gov- 
ernment plenary powers of administration, and then 
made themselves the administrators of the same, so 
that, in effect, the power that instituted the general 
government, and assigned to it the sphere of its admin- 
istration, provided for its own potential and perpetual 
presence in the administration of its own authority. 
Upon this theory, the general government possesses the 
entire authority of the nation over the subject of com- 
merce; and the power of congress, as charged with the 
exercise of the legislative authority of the nation over 
this subject, is plenary, and can of right do what sover- 
eignty itself can do; that is, what the people as a 
nation can of right do. And why not ?— since the people 
themselves as a nation, administer this authority for 
their own security and welfare. 



EXPRESS POWERS OF CONGRESS. 189 

§ 3G3. The regulation of commerce extended not only 
to the regulations of trade, but of every species of 
intercourse extending to the emigration and immigration 
of individuals. This appears to have been the under 
standing of those framing and adopting the constitution 
After xDrovidiug for the power of congress to regulate 
commerce, it was deemed necessary to restrain for a 
limited time the exercise of this power over a certain 
class of subjects. Thus the constitution provides that, 
the migration or importation of such persons, as any 
of the states then existing might think proper to admit, 
should not be i)rohibited by the congress j^rior to the 
year one thousand eight hundred and eight ; but that a 
tax or duty might be imposed on such importation not 
exceeding ten dollars for each person. If the power 
to regulate commerce did not extend to the authority to 
exclude sucli persons from coming into the country as 
the congress might prescribe, this prohibition in the 
constitution was uncalled for; for congress had acquired 
the authority thus restricted under no other i)rovision 
than that which gave it authority to regulate commerce, 
which, in this case, was construed to include the inhi- 
bition of the specified subject. This, undoubtedly was 
a correct construction of the grant. The nation had 
delegated to congress all its authority upon the subject; 
and that, as a sovereign nation, it had authority to pro- 
hibit entirely the introduction of a particular class of 
individuals into its jurisdiction, no one will i)retend 
to deny. 

§ 364. Congress also has power to regulate commerce 
among the several states. This power is as plenary in 
respect to commercial intercourse among the several 
states as in respect to intercourse with foreign powers ; 
subject, however, to the restrictions contained in the 
ninth section of the first article, which are, that no tax 
or duty shall be laid on articles exported from any state; 
and no ijreferences shall be given by any regulation of 
commerce or revenue to the ports of one state over 
those of another ; nor shall vessels bound to or from 
one state be obliged to enter, clear or pay duties in 
another. In respect to foreign nations, it is universally 
admitted that the terms of this provision include every 
species of commercial intercourse ; and this being the 
admitted meaning of the provision as applicable to 
foreign nations, the same must likewise attach to the 
term in its application to the states. Commerce among 



190 GOVERNMENT. 

tlie several states must be that kind of commerce affect 
ing the interest of two or more states. The states as 
political institutions are independent of each other, and 
maintain, in that respect, a quasi sovereignty. But 
being entirely local in their respective jurisdictions, they 
have no other than strictly local authority ; and under 
the constitution, they have no ijower to extend their 
authority by treaty, compact, agreement or comity. 
That is, a state government is merely a local institu- 
tion, authorized to exercise local and domestic authority 
over certain subjects within its own state limits ; but 
beyond this it has no duty to perform, and no power to 
act. It cannot be known to, or represented in, any 
other government. It can enter into no treaty, alliance 
or confederation with any other power. It can lay no 
duties or imposts on any imports or exports, for any 
other purpose than executing its inspection laws; and 
even those are required to be for the use of the treasury 
of the United States ; and its regulations in that respect 
are continually subject to the revision and control of 
congress. From this condition of the states it became 
absolutely indispensable that there should be a common 
authority to which their citizens respectively might 
appeal to determine inter-state rights. There would 
naturally and necessarily be commerce among the 
citizens of the several states, which would require regu- 
lation by an authority and power common to, and 
supreme over all. This power could only exist in the 
nation, to be exercised by the general government. 

§ 305. That commerce among the several states 
which requires the authority of congress to regulate 
must be of a character to affect more than one state. 
The states are respectively competent to regulate the 
intercourse of their own citizens so long as they con- 
tinue within their respective jurisdictions. . Commerce 
among the several states is not intended to include 
such ordinary business transactions as are conducted by 
citizens in their intercourse with each other under state 
authority, or within the scope of state administration. 
But when transactions necessarily require an authority 
to supervise and enforce their observance, which a state 
from its local jurisdiction cannot exercise, then the 
authority of the general government is required to 
regulate such intercourse. The exclusive internal com- 
merce of a state between its citizens, is to be regulated 
by the authority of a state itself; for it is the policy of 



EXPRESS POWERS OF CONGRESS. 191 

all truly democratic governments to commit the admin- 
istration of governmental antbority to those who are 
only to be aifected by it. But where there are citizens 
of thirteen separate states dealing with each otber, 
carrying on trade which brings them within the jurisdic- 
tion of several separate and distinct authorities during 
a single transaction, each of which are liable to have 
ditfereut laws and regulations affecting the same, it 
becomes necessary that the regulation of such inter- 
course should be intrusted to a power that can speak 
and act with authority over all. Such is the character 
of that commerce among the several states which is 
comniitted to the regulation of congress by this i)ro- 
vision of the constitution. 

g 36G. These several state governments are created, 
and exist only for the special purpose of administering 
in those local and domestic matters which pertain 
strictly to the locality of the particular state. For this 
reason, they are not allowed to exercise authority over 
subjects affecting generally citizens of the United States. 
No state is permitted to regulate the trade between 
itself and another state. A very material object of 
this power is to protect the commerce of the people 
of one state while passing through another with their 
imports or exports. If each state were at liberty to regu- 
late the trade between state and state, it would be impos- 
sible to estimate the embarrassment that would inevitably 
follow the exercise of such authority. The experience 
of the states during the confederation, demonstrates the 
disastrous consequences to inter-state trade and com- 
merce, sure to follow under the stimulating influences 
of local interests and the desire of petty advantage. 

% 367. The power to regulate commerce among the 
several states is necessarily exclusive in congress. The 
reasons for conferring the power upon the general gov- 
ernment are sufficient to require the exercise thereof to 
be exclusive in congress. But aside from these reasons, 
it has been judicially determined that the full power to 
regulate a particular subject, implies the whole power, 
and leaves no residuum ; that a grant of the whole is 
incompatible with the existence of a right to any part 
thereof in another ; that a grant of the power to regu- 
late, necessarily excludes the action of others, who 
would exercise the same authority.^ 

1 See Gibbons v. Ogden, 9 "Wheat., 1, 198, 199, 200; also 12 id., 419, 445; see also 
Story's Com. ou Const., g 1072 a; 1072 6; 1072 c/ 1072 d; 1072 e; 1072/; 1072 0, 
1072 A; 1072 i. 



192 GOVERNMENT. 

g 368. There have been able and learned discussions 
touchiDg the authority of the states to impose regula- 
tions upon masters of vessels, either from foreign ports 
or from ports within the United States, touching the 
landing of passengers, etc. But the questions discussed 
were whether the regulations were matters of internal 
police, belonging to the states, or whether they amounted 
to a regulation of commerce, the power of which was 
exclusively in congress. By a certain act of the state 
of New York, concerning passengers of vessels coming 
to the port of New York, the master of any ship arriv- 
ing from a foreign port, or from one of the other states, 
within twenty-four hours after its arrival, was required 
to report to the mayor, in writing, on oath or affirmation, 
the name, place of birth, last legal settlement, age and 
occupation of every passenger brought in such ship to 
the city of New York, or permitted to land at any place, 
or put on board of any other ship with an intention of 
proceeding to the city, under a penalty of seventy-five 
dollars for every passenger, to be paid by the master, 
owner or consignee. And further, each master was 
required to give bond to the mayor, Avith two sureties, 
in a sum not exceeding three hundred dollars for each 
I)assenger not a citizen of the United States, to save 
harmless the mayor, &c., and the overseers of the poor, 
from all expense and charges which might be incurred 
in the maintenance and support of such passenger, 
under a penalty of five hundred dollars. It farther pro- 
vided that the master or owner should, on the order of 
the mayor, be compelled, under a heavy penalty, to 
remove to the place of his last settlement, any passen- 
ger, being a citizen of the United States, who should be 
likely to become chargeable on the city.^ 

g 369. lb seemed to be conceded in the adjudication^ 
of this case, that if the provision above referred to was, 
in effect, a regulation of commerce, the act would be 
unconstitutional. But a majority of the court held 
that the act was not to be considered as a regulation 
of commerce ; that it was merely a police regulation ; 
that jurisdiction over matters of internal police had not 
been conferred upon the general government ; and that 
therefore any legislation upon such matters was a con- 
stitutional exercise of state powers ; that both the end 
to be attained and the means used were within the pow- 
ers not surrendered — not conferred — upon the general 

1 See The City of New York v. Miln, 11 Pet. S. C, Rep., 102. 



EXPRESS POWERS OF CONGRESS. 193 

government; the end being to prevent tlie state from 
being burdened with foreign paupers ; the means bear- 
ing a just, natural and api)ropriate relation to that end; 
that while the state is acting within the legitimate scope 
of its power as to the end to be attained, it may use 
any means appropriate to that end, although they be 
tbe same, or so nearly the same, as scarcely to be dis- 
tinguishable from those adopted by congress, acting 
under a different power ; subject only to the limitation 
that in the event of coUision, the law of the state must 
yield to that of congress ; that a state has the same 
undeniable and unlimited jurisdiction over all persons 
and things, within its territorial limits, as any foreign 
nation, where that jurisdiction is not surrendered or 
restrained by the constitution of the United States ; 
that by virtue of this, it is not only the right but the 
duty of the state to advance the safety, happiness and 
prosperity of its people, and to provide for its general 
w^elfare by any and every act of legislation which it 
may deem to be conducive to those ends, where the 
I)owcr over tbe particular subject, or the manner of its 
exercise, is not surrendered or restrained ; that all those 
powers which relate merely to municipal legislation, or 
Avhat may be termed, internal iwlice, are not thus sur- 
rendered or restrained ; and that, consequently, in. 
relation to these, the authority of a state is complete, 
unqualified and exclusive ; that any law comes within 
this description which concerns the welfare of the whole 
people of a state, or any individual within it, whether 
it relate to their rights or their duties ; whether it 
respect them as men or as citizens of the state; whether 
in their public or private relation ; whether it relate 
to the rights of persons or of property, of the whole 
people of the state or of any individual within it, and 
whose operation is within the territorial limits of the 
state, and upon the jjersons and things within its 
jurisdiction.^ 

§ 370. These propositions of the court, in the case 
just referred to, seem to contain certain fallacies to 
which attention is called. Tirst. That whatever meas- 
ures are necessary for the perfect administration of the 
domestic interests of the state, called internal imlice 
reQ'uIation, they come within the authority of the state, 
even though they do operate oppressively upon citizens 

1 The City of New York v. Miln, supra. 
25 



194 GOVERNMENT. 

of other states, and other persons immigrating to the 
United States, under the encouragement, aud even pro- 
tection, of the laws of the nation. The principle upon 
which this authority in the states is claimed, is, that the 
states have never surrendered to the federal government, 
and the constitution of the United States has not 
restrained the states from, the exercise of this power ; 
consequently that the states possess aud can exercise it, 
even though in such exercise, the means adopted by 
them be scarcely distinguishable from those adopted 
by congress in the exercise of the powers conferred 
upon the general government. It is to be remembered 
that the powers to be exercised by the states are those 
remaining after the enumerated powers or subjects of 
the general government have been carved out of the 
plenary powers of the nation; and after those which 
are prohibited to the states are also deducted ; so that 
each state derives its powers of administration from the 
same fountain ; and so far as they are not restrained by 
their respective constitutions, they are equal ; and what 
one state can do, all can do ; what pertains to the inter- 
nal police authority of one state, pertains to all states j 
therefore, in determining the question whether a state, in 
the exercise of a particular power, has transcended its 
police authority, it is proper to inquire what would be 
the effect if all the states should exercise the same 
jjowers. Under the constitution of the United States, 
every citizen of a state is likewise a citizen of the United 
States ; and as a national citizen, he is politically and 
potentially present in every i3art of the national domain ; 
and he has the right to be personally present in any 
state or territory, upon the same general conditions, 
enjoying the same privileges and immunities as the 
citizens of the state into which he seeks to come. Now, 
any state regulation which interferes with his rights as 
a national citizen, in manner and in effect different from 
what it does with its own citizens, conflicts with his 
constitutional rights ; whatever may be the pretense for 
adopting such regulations. If by state regulation, New 
York can x^revent immigration into its state, except 
upon penal terms, every other state may do the same. 
If New York can constitutionallj^ make exactions upon 
the citizens of any particular state, such state can 
retaliate by exactions upon the citizens of New York 5 
and so every state may adopt its own regulations, and 
make it impossible for a national citizen to leave the 



EXPRESS POWERS OF CONGRESS. 195 

state in wliicli he was born, and deny to the government 
of the nation the anthoritj^ to secure to the citizen of 
each state the privileges and immunities of the citizens 
of the several states.^ 

§ 371. The New York law authorized the mayor of 
New York to compel the master of any vessel under a 
heavy penalty to remove to the place of his last settle- 
ment, any passenger, being a citizen of the United 
States, who should be likely to become chargeable on 
the city. It is manifest that New York could not 
authorize the master, or any other person, to take a 
citizen of the United States beyond her own limits. 
She may legislate with respect to her own citizens 
within her own limits, and may authorize or require 
paupers to be removed from one town or county to 
another within her state jurisdiction ; but when she 
legislates in respect to the rights of national citizens 
beyond her limits, she manifestly transcends her author- 
ity as a state. If by legislation she may send citizens 
of the United States beyond her lines into other states, 
other states by the same authority may send them back, 
and others beside them. For a state cannot by its 
legislation fix responsibilities upon persons and x)laces 
beyond its jurisdiction. Admit the authority of a state 
to determine who may come within, or who must depart 

1 To illustrate the consequences of permitting a state to exercise authority 
extending to interests beyond her jurisdiction, take the following as an illus- 
tration : In 17S7, New York, by an act (INlarch 19) granted to John Pitch a sole 
and exclusive right to make and use every kind of boat or vessel impelled by 
steam, in all creeks, rivers, bays and waters within the territory and jurisdic- 
tion of New York, for fourteen years. In 179-^, on tlie suggestion that Fitch 
■was dead, or had withdi-awn from the state, without having made any attempt 
to use his privilege, an act was passed repealing the grant to Fitch, and con- 
ferring similar privileges on Robert R. Livingston, for the term of twenty 
years, on a suggestion made by hinn that he was the possessor of a mode of 
applying the steam engine to propel a boat on new and advantageous princi- 
ples. On the 5th of April, ISO'?, another act was passed, declaring that the rights 
and privileges granted to R. R. Livingston, by the last act, should be extended 
to him and Robert Fulton, for twenty years from the passage of tlie act, etc. 
And by an act of the 9th April, 1811, provisions were made for enforcing the 
observance of the privileges granted, by the forfeiture of vessels, &c., found 
navigating these waters. Thus, according to the laws of New York, no one 
could navigate the bay of New York, the North or Hudson river — the sound — 
t!ie lakes or any of the waters of the state, without a license from tlie grantees 
of New York, under penalty of forfeiture of tlie vessel. Connecticut retaliated 
upon this, by providing that no one could enter her waters witli a steam vessel 
haviar/ sucli Ucense. New Jersev provided by law that should any citizen of that 
state ^be restrained under the New York law from using steamboats between 
the ancient shores of New Jersey and New York, he should be entitled to an 
action for damages in New Jersey, with treble costs against the party restrain- 
ing or impeding him under the law of New York. The New Jersey act was 
called an act of retortion against the illegal and oppressive legislation of New 
York, and was justified on the grounds of public law, justifying reprisals 
between independent states. Thus, a steam vessel of any description going to 
New York, is forfeited to the representatives of Livingston and P'ulton, unless 
she have tlieir license. Going from New York or elsewhere, to Connecticut, she 
IS pi-ohibited from entering the waters of that state, if she have such license. 
If the representatives of Livingston and Fulton, in New York, carry intoeflect, 
by juiUcial process, the provisions of the New York laws, against a citizen oi 
New Jersey, they expose themselves to a statute action in New Jersey, for all 
damages aiid treble costs. (See Gibbons v. Ogden, 9 Wheat., pp. 4-10,) . 



196 GOVERNMENT. 

from, the limits of the state, and the power conferred 
upon congress to regulate commerce with foreign 
nations, and among the several states, is dead, so 
far as immigration and emigration are concerned. If 
the states have authority to impose conditions upon the 
immigration of citizens or aliens, the nation has not. 
But the nation has the express authority to regulate 
this branch of commerce, and it alone can exercise it ; 
for its jurisdiction extends beyond state lines. 

g 372. The introduction of aliens or citizens of the 
United States into a state under any sort of regulation, 
is necessarily a regulation of commerce ; and it involves 
the assertion of powers over persons not within the 
jurisdiction of the state attempting such regulation. 
Imposing any conditions of initiation into a state, 
implies a right of exclusion ; and the rights of one 
state in that respect being the rights of all, there is no 
authority upon that subject left to the nation. Its 
i;)Ower to regulate commerce, upon such theory, is 
absorbed by the states. Its treaty stipulations with 
Great Britain, by which the inhabitants of the two 
countries are to be ijermitted freely and securely to 
come with their ships and cargoes to all places, ports 
and rivers in the territories of each country, to which 
other foreigners are permitted to come, to enter into the 
same, and to remain and reside in any parts of said 
territories respectively ; to hire and occupy houses and 
warehouses for the purposes of their commerce; and, 
generally, to afford complete protection and security to 
the merchants and traders of each nation respectively, 
subject to the laws and statutes of the two countries, 
could not be enforced by the nation, if this power to 
impose conditions upon the immigrating alien can be 
exercised by the states. The power to regulate com- 
merce with foreign nations, and among the states, is 
given to congress in the most unlimited terms; and, 
therefore, a state cannot make a regulation of commerce 
to enforce health laws, or any other police regulation, 
because that power is committed exclusively to congress. 

§ 373. In the passenger cases, Mr. Justice Wayne, 
in stating the decision of the court, among other things 
holds the following : The acts of New York and Mas- 
sachusetts imposing a tax upon passengers, either 
foreigners or citizens, coming into the ports in those 
states, either in foreign vessels or vessels of the United 
States ; from foreign nations, or from ports in the 



EXPRESS POWERS OF CONGRESS. 197 

Uaited States, are uncoustitntional and void, being in 
their nature regulations of commerce, contrary to the 
grant in the constitution to congress, of the power to 
regulate commerce with foreign nations and among the 
several states ; — that the states within the union cannot 
coustitutionally tax the commerce of the United States 
for the purpose of pajiug any expense incident to the 
execution of their police laws ; — and that the commerce 
of the United States includes an intercourse of persons, 
as well as the importation of merchandise; — also that 
the acts of Massachusetts and New York are uncon- 
stitutional and void, being in conflict with treaty 
stipulations between the United States and Great 
Britain ; — and that such laws are in conflict with sun- 
dry acts passed by congress at diff*erent times, admitting 
foreigners with their personal luggage, and tools of 
trade, free of duty or imposts, into the United States; — 
that the law of a state imposing any tax upon foreigners 
or immigrants, for any purpose whatever, whilst the. 
vessel is in transitu to her port of destination, though 
such vessels may have arrived within the jurisdictional 
limits of such state, before the passengers had landed, 
is in violation of such acts of congress, and therefore 
void ; — that those acts so far as they imposed any obli- 
gation upon the owners or consignees of vessels, or 
upon the captains of vessels, or upon freighters of the 
same, arriving in the ports of the United States within 
the said state's— New York and Massachusetts — to pay 
any tax or duty of any kind whatever, or to be in any 
way responsible for the same, for passengers arriving in 
the United States, or coming from a port within the 
union, are unconstitutional and void ; being contrary 
to the constitutional grant to congress of the power to 
regulate commerce with foreign nations and among the 
several states, and also to the legislation of congress 
under the said power by which the United States had 
been laid off into collection districts and ports of entry, 
established within the same, and commercial regulations 
prescribed, under which vessels, their cargoes and pas- 
sengers are to be admitted into the ports of the United 
States, as well from abroad as from other ports within 
the union; — that the ninth section of the first article 
of the constitution includes within it the migration of 
other persons, as well as the importation of slaves, and 
in terms recognizes that other persons as well as slaves 
may be the subject of importation and commerce; — that 



198 GOVERNMENT. 

the fifth clause of this nmth section, which declares 
that " no preference should be given by any regulation 
of commerce or revenue, to the ports of one state over 
those of another state, nor should vessels bound to or 
from one state be obliged to enter, clear or pay duties 
in another," is a limitation upon the power of congress 
to regulate commerce for the purpose of producing 
entke commercial equality within the United States ; 
and also a prohibition upon the states to destroy such 
equality by any legislation i^rescribing a condition upon 
which vessels bound from one state should enter the 
ports of another; — that those acts of state legislation 
imposing a tax upon passengers, are unconstitutional 
and void, because each of them contravene the pro- 
visions of the first clause of the eighth section of the 
first article of the constitution, which declares that all 
duties, imjDosts and excises shall be uniform through- 
out the United States; — that such injanction of 
uniformity is as obligatory upon the states in the 
absence of legislation on the part of congress, as if 
the uniformity had been made and established by 
congressional legislation ; — that such constitutional uni- 
formity is interfered with and destroyed by any state 
imposing any tax upon the intercourse of i3ersons from 
state to state, or from foreign countries to the United 
States; — that the power of congress to regulate com- 
merce with foreign nations and among the several states, 
includes navigation upon the high seas, and in the bays, 
harbors, lakes and navigable waters within the United 
States ; and that any tax by a state in any way affect- 
ing the right of navigation, or subjecting the exercise 
of the right to a condition, is contrary'- to such grant to 
congress. ^ 

g 374. In the case of The City of New Yorlz v. Miln 
before cited, the court remarked : " We think it as 
competent and as necessary for a state to x^i'f^vide 
precautionary measures against a moral pestilence of 
paupers and vagabonds, and possibly convicts, as it is to 
guard against the physical pestilence which may arise 
from unsound and infectious articles imported, or from 
a ship the crew of which may be laboring under an 
infectious disease." It certainly is competent for a 
state to exercise all needful power to protect its citizens 
from moral and physical evils, provided she does not 
adopt measures involving the rights of persons other 

I See Smith v. Tamer, and Norris v. The City of Boston, 7 Ho-w. S. C, 283. 



EXPRESS POWERS OF CONGRESS. 199 

tliau those over wliicli she has jurisdiction, in matters 
purposely committed to the jurisdiction of the general 
government. The states of the union may, in the exer- 
cise of their police powers, pass quarantine and healtli 
laws interdicting vessels coming from foreign ports, or 
ports within the United States, from landing passengers 
and goods ; prescribe the places and times for vessels to 
quarantine, and impose penalties upon persons violating 
the same. But such laws, though temporarily affecting 
commerce in its transit, are not regulations of commerce, 
prescribing terms upon which merchandise and persons 
shall be admitted into the ports of the United States. 
They are necessary precautionary measures to prevent 
the introduction of disease into the ports to which ves- 
sels are bound. And states may, in the exercise of such 
police power, without any violation of the power in 
congress to regulate commerce, exact from the owner 
or consignee of a quarantined vessel, and from passen- 
gers on board, such fees as are necessary to pay the 
costs. and expenses of their detention, and of the purifi- 
cation of the vessel, cargo and apparel of the persons 
on board. ^ 

g 375. How far a state possesses the authority to 
obstruct by its legislation a navigable stream in which 
the tide ebbs and flows, has been the subject of much 
discussion. The principle involved would seem to be 
this : If the stream be navigable in fact, and the quality 
of navigability continues between two or more states, 
the power to regulate commerce upon such stream 
should be exclusive in congress ; because the states are 
not competent, by any authority they possess respect- 
ively, to regulate the commerce between themselves ; 
and congress has plenary authority to do so. Accord- 
ing to technical definition, a stream is said to be navi- 
gable to the extent that the tides ebb and flow therein ; 
though, in fact, such streams are not always navigable. 
A stream lying entirely within a state, which in fact is 
not navigable, even though the tide ebbs and flows 
therein, is in no way connected with the commerce of 
the nation, and there is no reason why the authority 
of congress to regulate commerce with foreign nations 
and among the several states, should give to the gen- 

1 Although the court "was divided in opinion in tliese passenger cases (Smith 
V. Turner, JS^orris v. The City of Boston, 1 How. S. C, 28:3), five of the judges — 
McLean, Wayne, Catron, ^IcKinley and Grier— concurred in the doc- 
trines herein stated. Four of the judges — Taney, Ch. J., Daniel, Nelsou 
and WooDBUKY— dissenting therefrom. (See Story's Com. on Const., 2 1072 s-, 
and note.) 



200 GOVERNMENT. 

eral government commercial jurisdiction upon the banks 
or over the bed of such non-navigable stream. In 
respect to all such streams, or even navigable streams 
in fact, beyond the point where navigation is possible as 
a channel of commerce, there is no apparent reason 
why the general government should exercise exclusive 
or even any jurisdiction over them, or over that part of 
them. Where a stream cannot be used in fact for com- 
mercial purposes, there is probably no reason why the 
rights of riparian owners along its channel should not 
be left to the administration of the local or state gov- 
ernment. To give congress authority over a particular 
stream of water, it would seem that its navigable 
character should be continuous beyond the jurisdiction 
of the state ; that is, it should be navigably connected 
with navigable waters extending beyond the limits of 
the state. For where there are navigable waters entirely 
within the territorial limits of a particular state, which 
are disconnected with navigable waters beyond such 
limits, such waters are not the subject of either inter- 
state or international use ; and consequently the power 
of congress to regulate commerce with foreign nations 
and among the states would not reach to the navigation 
of such isolated waters. ^ 

g 376. A stream that is in fact navigable, and is used 
as a channel of inter-state and international communi- 
cation cannot be lawfully obstructed by the authority 
of a state through which it passes, even though con- 
gress has made no especial regulations in respect 
thereto. By the constitution of the United States its 
navigable qualities are placed under the exclusive regu- 
lation of congress, and consequently the states have no 
power to authorize the interruption of the full and 
perfect enjoyment of the public easement therein. It 
has been argued that the state might authorize an 
obstruction, as the building of a bridge over a navigable 
stream, where congress had passed no law expressly 
prohibiting the same ; but the supreme court of the 
United States held to the contrary. They held, that if 
the law of the state of Virginia authorized the erection 
of a bridge over the Ohio river in such a manner as to 
obstruct the navigation, such law would be no defense 
to the bridge company, although congress had passed 
no act i)i^ol^i1^ifcii3S the obstruction of that river; for 

1 See Veazie v. Moore, 14 Ho-w., 56S; United States v. Coombs, 12 Pet. S, C, 78. 
Per SxoRY, Justice. 



EXPRESS POWERS OF CONGRESS. 201 

they had exercised control over it by licensing vessels, 
establishing- ports of entry, imposing duties upon mas- 
ters and other oflQcers, &c.^ 

g 377. The power of congress to regulate commerce 
extends to the regulation of navigation, and to the 
coasting trade and fisheries, within, as well as without 
any state, wherever such navigation is connected with 
the commerce or intercourse with any other state or 
nation. The form of the grant is, congress shall have 
power to regulate commerce with foreign nations and 
among the several states. The power of regulating 
this branch of commerce was committed to the general 
government, because, from the nature of things, it was 
a i)ower which could not be left with the several states. 
No subject could be committed to state jurisdiction 
which required the exercise of authority beyond its 
limits. To regulate the commerce with foreign nations 
or between the several states involved the exercise of 
such extra-territorial authority, and for that reason that 
subject was necessarily committed to the exclusive con- 
trol of congress. But such reason would not extend to 
the navigation of a stream lying wholly within a par- 
ticular state, and disconnected with any other navigable 
waters extending beyond state limits.^ The power to 
regulate commerce extends to the regulation and gov- 
ernment of seamen on board of American ships ; to 
conferring privileges upon ships built and owned in the 
United States, in domestic as well as foreign trade.^ It 
extends to quarantine laws, pilotage laws, and wrecks 
of the sea.* It extends as well to the navigation of 
vessels engaged in carrying passengers, steam vessels 
or others, as to the navigation of vessels engaged in 
traffic and general coasting business.^ It extends to the 
laying of embargoes both on domestic and foreign 
voyages. ° It extends to the construction of light- 
houses ; the placing of buoys and beacons ; to the 
removal of obstructions to navigation in creeks, rivers, 
sounds, bays, &c. ; "^ in short, everything essential to 
the exercise of commercial intercourse and intercom- 
munication between the people of the United States 
and foreign nations, and also between the several states, 

1 Slate of Pennsi/lvania v. The Wheeling and Belmont Bridge Co., 13 How.. 518. 
Heart the dissenting opinion of Judge Taney in tliis case for the views of those 
liolding a contrary doctrine. It may be found in a note by Judge Story in his 
tliird edition of Com. on the Const., § 1073. 

2 Veazie v. Moore, 14 How., 568. 3 1 Tuck. Black. Com., app., 232. * 9 Wheat., 
233-208. 5 Id., 21i-221. 6 Id., 191, 192. ^ Story's Com. on Const., g 1075. 

26 



202 GOVERN"MEKT. 

seems to be included in the power given to congress to 
regulate commerce. The people of the United States 
in the institution of their general or national govern- 
ment undoubtedly intended to make it an instrument, 
by means of which they, as a nation, could exercise 
authority over the whole subject of commercial inter- 
course as fully and completely as any other sovereign 
and independent nation could of right do. They com- 
mitted the regulation of commerce with foreign nations 
and among the several states to the exclusive control 
of congress, and gave to it the plenary authority of the 
nation, always to be exercised and administered by 
themselves. 

g 378. The power to regulate commerce with the 
Indian tribes is exclusively in congress. Prior to 
the revolution, this power was exercised by the British 
government. During the confederation it belonged to 
congress, except as to those tribes which resided within 
the limits, or were considered as members, of any of the 
states. At the formation of the constitution no objec- 
tions were made to conferring this power upon the general 
government through congress. In their tribal condition 
the Indians have ever been dealt with as separate 
nations, although dependent. Their territorial rights 
and property have been respected by the government. 
Their property in the soil, however, has not been deemed 
such as to entitle them to the right to dispose of it to 
foreign nations, or to any but the general government. 
Their mode of occupation is such as only to require the 
use of it for purposes of hunting and fishing. As indi- 
viduals, generally, they attach no improvements, and 
hence, make no individual appropriations of the land to 
their respective uses. Therefore the government cannot 
deal with them as individually having any property in 
the soil, or as having any other rights thereto, except 
its use for the purposes to which they have applied 
it. Their use does not differ essentially from the use 
made of it by the wolf, the bear, the deer, and other 
denizens of the forest. It has long been a problem 
demanding solution, what is to beconie of the red man 
at last ? There can be but two answers to the question : 
he must become a civilized being individually and 
socially ; or he must cease to live upon the earth. If, as 
a race, the Indians are incapable of becoming civilized, 
and of entering upon that higher plane of civilization and 
enlightenment awaiting humanity, as active, cooperat 



EXPRESS POWERS OF CONGRESS. 203 

in,^ members, tliey must disappear. If the Autlior of 
ali good in his wisdom, has ordained progress in the 
birtli, development and decay' of races in the human, as 
in the animal kingdom, then the saurians of the races 
must pass away, by the advancement of those conditions 
of life essential to the ushering in of that "good time 
COMING," believed ii\ by many, and hoped for by all. 

§ 379. From the character and constitution of that 
society of Indians known as a tribe, it is impossible to 
accord to them the attributes of an independent sover- 
eign nation ; nor can they in all respects be treated as 
such. An Indian tribe, leading a nomadic life, may 
have its king or chief, and its counselors ; but it is in 
uo conditionto maintain that relation and intercourse 
with other nations essential to true nationality. As a 
society, they may be recognized and treated with as 
having a corporate existence, and possessing certain 
rights as incident to their nomadic condition. Since 
the organization of the national government, the United 
States have always treated with them as possessing a 
dependent sovereignty — if such a condition be definable 

as having rights original and inherent in themselves, 

by which they can acquire and possess property and 
dispose of the same under such supervision and restric- 
tions as the general government feels in duty bound to 
exercise. For this reason all trade or commercial inter- 
course with them must be in accordance with the rules 
and regulations imposed by congress. It has been 
decided upon solemn argument by the supreme court 
of the United States that, an Indian tribe is to be 
deemed politically a state, so far as to be considered a 
distinct political society capable of self-government; 
but that it cannot be deemed a foreign state in the sense 
of the constitution. Its stateship is one of pupilage, 
and in the United States each tribe is the ward of the 
nation. ^ 

1 See The Cherokee Nation v. Georgia, 5 Pet., 1-17. 



204 GOVERNMENT. 

OHAPTEE XL 

POWEES OF CONGRESS — If ATUKALIZATION. 

g 380. " OoxGEESS shall have power to establish a 
imiform rnle of naturalization, and uniform laws on the 
subject of bankruptcies, throughout the United States." ^ 
As the United States were to be one nation, it was 
necessary that there should be one uniform rale of citi- 
zenship. Under the confederation the states each for 
themselves exercised this authority, and the inevitable 
consequence was, that there were many and dissimilar 
rules of naturalization in the several states ; and as the 
citizens or free inhabitants of each state were entitled 
to all the privileges and immunities of citizens in all 
the other states,^ it followed that a single state had the 
power of determining the conditions of naturalization 
afi'Bcting all the other states. For an alien might become 
naturalized in a state requiring but a short residence, 
and then he was, in effect, a citizen of the nation, and 
he could claim in the other states the privileges 
and immunities of their own citizens. By this provision, 
the laws on the subject of naturalization of a single 
state were rendered paramount to those of the other 
states. But as the citizens of the state are likewise 
national citizens, it is the right of the nation alone to 
determine who shall politicall}^ and potentially become 
members of the national society. The propriety of 
committing the exercise of this power to the general 
government was not questioned in the convention, and 
has never since been questioned. Congress has the 
exclusive power of determining upon what conditions 
an alien may become a citizen of the United States. 

§ 381. In the United States there are two classes of 
citizens; that is, two classes in reference to the manner 
in which they became citizens. At the time of origi- 
nating the American nation, the citizens of each state 
became likewise citizens of the nation, and the rights 
of citizenship attached to them. Therefore, after the 
establishment of American nationality every person 
born within the territorial limits of the United States, 
whether his X-)arents were citizens or aliens, became a 
citizen by birth, called a native born citizen. Under 
the constitution, all such are entitled to all the rights 

1 Art. 1, § 8, cl. 4, Const. U. S. 2 Articles of Confederation, art. 4. 



NATURALIZATION. 205 

and privileges pertaining to membership of the national 
family. The constitution in some respects distiiiguisbes 
between native born citizens and others; thus, no person 
is eligible to the otlice of president of the United States 
unless be is a natural born citizen. So also to be quali- 
fied as a member of the house of representatives, or of 
the senate, be must bave been a citizen of the United 
States a certain number of years. 

S 382. Under a democratic government the sover- 
eignty resides essentially and entirely with the people. 
Those only who comprise the people and partake of this 
sovereignty, are citizens, and are capable of exercising 
political rights and powers. Therefore they bave the 
authority to determine upon what terms and conditiogs 
those who are alien to their society shall be admitted 
to become constituent members thereof, and become 
politically enfranchised. In a country where the people 
are the administrators of their own governmental 
authority, and where every one who is admitted to the 
rights and i^rivileges of citizenship becomes an equal 
jjarticipator in such administration, it becomes a ques- 
tion of prime importance to fix upon a safe and just 
rule of naturalization, suited to the growth and develop- 
ment of the nation, and at the same time prudent and 
safe to a faithful and just administration of govern- 
mental authority. For by the act of naturalization a 
foreigner, whatever bis moral and intellectual condition, 
is made a citizen and clothed with all the authority and 
I)owers of the most enlightened, moral and patriotic 
citizen of the nation. If the conditions of conferring 
citizenship are not reasonably stringent there will be 
great danger of weakening the just administrative 
power of the nation. For it should be remembered that 
commercial intercourse exists between this and the most 
unenlightened nations ; and the uniform rules of natu- 
ralization apply as well to the ignorant, immoral and 
vicious, as to the better classes of immigrants ; and that, 
practically, every ignorant and vicious alien who is 
made a citizen becomes a political tool in the hands of 
the like class of native born citizens, and by his vote 
he neutralizes the power at the polls of the most enlight- 
ened and patriotic, so that virtually every ignorant and 
vicious citizen which is added to the national society, 
sinks the power of the like number of those upon whose 
shoulders the pillars of the republic rest. 



206 GOVERNMENT. 

% 383. There Lave been two classes of opinions 
respecting the essential features of naturalization laws, 
which may be deuoininated the liberal and the stringent. 
One class have advocated the early admission of all 
foreigners who desired it, to a full participation in the 
political administration of the government ; affirming 
that, generally, they were as well qualified to exercise 
the right of suftrage immediately after becoming located 
in the country, as a very large class of natural born 
citizens are, or ever will be; — that by being permitted 
to participate in the administration of the government 
they will feel themselves identified with the interests 
and general prosperity of the country, and will become 
attached to its institutions ; — that, having the rights of 
citizenship, they are subject to its duties and obligations ; 
and that the nation will be enriched and strengthened 
by an increase of its citizens. On the other hand, it is 
claimed, that the character of any government depends 
upon the character of those who administer it; — that, 
whatever its form, it becomes free or oppressive accord- 
ing to the character of those who exercise its powers; — 
that a republican and democratic government can be 
maintained only by the presence of intelligence and 
virtue among the people; — that the mass of foreigners 
are necessarily ignorant of the essential principles of a 
free government ; are peculiarly liable to fall into the 
hands of unprincipled men and demagogues, who will 
not hesitate to approach them by the use of corrupting 
and demoralizing influences ; who will mislead them as 
to the real issues, and avail themselves of their support 
for selfish and dishonest purposes; — that while it may 
be true that the mass of foreigners are as intelligent 
and virtuous as a certain class of native born citizens, 
that the class of ignorant and vicious native born citi- 
zens, who are entitled to the elective franchise, are 
naturally as large as it is safe for any republican gov- 
ernment to attempt to hold in check, without being 
largely increased by the addition of an uneducated and 
undisciplined foreign element ; and that, therefore, it is 
the more prudent and safe policy to require a long resi- 
dence in the country, in order that the foreigner may 
become familiar with the practical operations of the 
government ; with the character and habits of those 
concerned in its administration ; in short, that he may 
become politically acclimated before he attempts to 
declare who shall administer the public authority, and 



NATURALIZATION. 207 

to prescribe for the political welfare of the nation. 
Practically it has been found, that that class of immi- 
grants who come to this country to benelit their 
physical and social condition by habits of industry and 
honest living ; who immediately seek some honest 
and honorable occupation, are abundantly qualified to 
participate in the administration of the public authority 
after the brief residence of five years. But that other 
class who come hither because it was impossible, or, at 
least impolitic, for them to remain at home ; who had 
no honest or honorable occupation in the old world, and 
who proposed to find none in the new ; whose highest 
ambition it is to eat and to drink and to indulge in their 
animal propensities ; who settle mostly in cities and the 
larger towns, because of the facilities for dishonest and 
dishonorable gains, have proved themselves dangerous 
to the security and welfiire of society, and, so tar as 
they have obtained political power, it has been used for 
the lowest and basest purposes. They are ever ready 
instruments in the hands of dishonest and gambling 
politicians to place the political power of the country 
in the possession of those who use it for purposes ot* 
private emolument, regardless of what the .public wel- 
fare demands. Experience has already taught, that the 
greatest danger to the future of the commonwealth is 
to come from this class, as aids to the demagogue and 
trading politicians of the nation ; — that measures must 
be taken to elevate this class to that standard of intelli- 
gence and morality which will make it safe to intrust 
them with political power, or they must be deprived of 
its exercise. 

§ 384. The mode by which an alien may become a 
citizen, and be invested with the privileges and immu- 
nities of citizenship, is denominated his naturalization. 
By its operation the political status of the alien is 
changed in the eye of the law, and he is in a condition 
to enjov all the advantages conferred by birth upon the 
other class of citizens. The rights and privileges of 
aliens, as mere residents of the states, differ in different 
states. In general the United States leave to the state 
administrations those regulations which aft'ect their 
rights of property, and also the manner in which they 
are to be exercised and enforced. But it cannot be 
doubted that the alien is subject to the supervision and 
control of the general government, should it become 
necessary for it to exercise its authority. Thus, if a war 



208 GOVERNMENT. 

should break out between the United States and the 
country of which the alien is a citizen or subject, on 
general principles, he would thereby become an alien 
enemy, and would be liable to be sent out of the 
country at the pleasure of the general government; or 
to be laid under such restraints, while remaining within 
it, as congress might deem to be reasonable and i)roper. 
While the alien is the legal subject of the nation with 
which the United States is at war, the presumption is 
that he will be. true to the interests of his nation; and 
will avail himself of every means to advantage her ; 
therefore the right of self-defense justifies the govern- 
ment in taking necessary measures to guard against any 
injury he might be disposed to inflict in behalf of his 
liege sovereign and country. 

g 385. The duration of the character or quality of 
citizenship, that is, of defeasible or indefeasible allegi- 
ance, has been the subject of much discussion, and has 
not been so definitely settled hitherto as to be beyond 
even farther discussion. The doctrine of indefeasible 
allegiance has, perhaps, deeper root in England than in 
any other European country ; and, in discussing the 
grounds upon which the doctrine of perpetual allegi- 
ance is based, it becomes necessary to find their theory 
of the source of governmental authority, or the sub- 
ject of this indefeasible allegiance. 

§ 38G. Almost the entire real property of England is, 
by the policy of its laws, supposed to be granted by, 
dependent upon, and holden of some superior lord, in 
consideration of certain services to be rendered to the 
lord by the tenant or holder of the land. Thus all 
the lands of the kingdom are supposed to be holden, 
mediately or immediately, of the king, who is styled 
the lord paramount. In this manner are all the lands 
of the kingdom holden, which are in the hands of sub- 
jects. All tenures being thus derived from the king, 
those that held immediately of him, in right of his 
crown and dignity, were denominated his tenants in 
capite, or in chief. There were several species of ten- 
ures, each characterized by the species of services or 
renders due the lord from the tenants. Bracton divided 
them into franlc-tenement and mllenage; and of frank- 
tenements he says, some are held in consideration of 
homage and Icmght service; others in free-socagc, with 
the service of fealty only. And of villenages, some are 
pure and others are privileged. He that holds in pure 



NATURALIZATION. 209 

villenage shall do whatever is commanded him, and 
always bo bound to an uncertain service. The other 
kind of villenage is called villcin-socage, and these 
villcin-.socnien do villein service, bnt snch as are certain 
and determined. So, according to Bracton, the subjects 
of England holding the lands were, first, those where 
the service was free but uncertain, as military service 
with homage; that tenure was i)er servilimn militare, 
or by kniglib service. Second, where the service was 
both free and certain, as by fealty only, or by rent and 
fealty ; that tenure Avas called liberum socafjium, or free- 
sociige. Third, where the service Avas in its nature 
servile and base, and uncertain as to time and quantity; 
this tenure was panim villenagium, absolute or pure 
villenage. Lastly, where the service was base m its 
nature; but certain in quantity, this tenure was viUana- 
f/itim prlvUegiatmn. But whatever the tenure by which 
he held, he was bound by oath of service to his superior 
lord, from which obligation he had no right.or authority 
to absolve himself. 

g 387. The constitution of feuds had its origin from 
the military j)olicy of the ISTorthern or Celtic nations, the 
Goths, the Iluns, the Franks, the Vandals and the Lom- 
bards,^ who i)Oured themselves into Europe at the 
declension of the Roman Emi)ire. The feudal i)olicy was 
not established in England until the reign of William the 
Conqueror. The exact period of its establishment can- 
not be ascertained; but, it was probably after the 
threatened invasion from Denmark, in the nineteenth 
year of King William's reign. The defenseless condi- 
tion of the country at the time, was the occasion of the 
calling of a grand council to enquire into the state of 
the nation ; the immediate consequence of which was the 
c()mi)iling of the great survey called domesday-book, 
which was liuished the next year, and in the latter end 
of the same year, the king was attended by all his 
nobility at Sarum ; where all the princii)id landholders 
submitted their lands to the yoke of military tenure, 
became the king's vassals, and did homage and fealty 
to his person. The law and the form of the oath, made 
every man taking it, a tenant or vassal, the tenants 
obliging themselves to defend their lord's territories and 
titles against all enemies, foreign and domestic.^ This 

1 2B1. Coin., 45. 

2 " Statuirnus, ut omnes libcri homines foederc nt Sacramento affirmont, 
quod intra et extra univer.suin retjnum Angliae, Willielnio rcgi doniine .suo 
tidelis esse volunt; terras et lionores illius oihni lidelitate ubique servarecum 
eo, et contra iuimicos et alieuigena defondere." (See 2 Bl. Com., 50.) 

27 



210 GOVERNMENT. 

new policy was imposed by the conqueror, says Black- 
stone, but was nationally and freely adopted by the 
general assembly of the whole realm. ^ Here will be 
found the basis of that indefeasible allegiance so strenu- 
ously contended for in England, as inseparable from the 
British constitution. 

§ 388. Therefore, whatever repugnance may be felt 
to the assertion of the fact, the present government of 
England, in theory, is founded on conquest, the property 
having been traUjSferred to the king by his subjects, to 
be held by them afterward as tenants, and on conditions 
of services and fealty. Afterward the oaths of fealty 
and homage accompanied grants of land, and the oath 
of allegiance necessarily accompanied that of fealty. 
Certain consequences were understood to flow there- 
from. The allegiance thus pledged could not be 
withdrawn by the subject. It was a matter of contract 
between him and the king, and was perpetually bind- 
ing, unless the x^i'otection of his sovereign, which was 
the consideration of his allegiance, became impracticable 
or impossible. Hence, if the monarch was driven out 
by a successful competitor, who took possession of the 
throne, the allegiance of the subject was transferred, 
and it became his duty to obey the reigning sovereign. 
So also, when the king by treaty with a foreign power, 
alienated an entire territory, and its inhabitants, the 
allegiance was transferred to the new sovereign. From 
this allegiance, original or transferred, the subject could 
not withdraw himself: he was the subject of the king; 
one in whom the king had a species of property, trans- 
ferable at his sovereign pleasure, but not at the pleasure 
of the subject. Snch is the basis of the doctrine of 
indefeasible allegiance in England, and such the theory. 
But it has no application to a country where the peoi)le 
are sovereign, and where the allegiance arises from 
the necessity of government and the rights incident to 
such necessity. 

S 389. In a democratic republican government, the 
sovereignty of the nation consists in the authority of 
the members of the national society taken together as a 
whole. The government instituted by them is a mere 
instrument for the administration of their authority 
for purposes of individual protection, and for the com- 
mon defense and general welfare of the whole society. 
The allegiance which a member of that society owes 

1 2 Bl. Com., 50. 



NATURALIZATION. 211 

to the government, arises from the fact of membership 
of the society, and the necessary condition of obedience 
to all its requirements. The government is instituted to 
protect each member in the enjoyment of his civil 
liberty to tlie fullest extent, consistent with the like 
rights and liberties in others. Naturally, every one has 
the right, and is at liberty, to visit all parts of the earth 
as the common heritage of man; and to select such place 
for his home in any zone which pleases him. He is not 
responsible to any one for his parentage, or for the i)lace 
of his birth. Naturally, he is at liberty, as soon as able 
to provide for himself, to seek such social and political 
associations as he feels to be for his good. He can be 
mider no possible obligations to live under the particu- 
lar form of government, under which he chanced to be 
boru. He may seek the highest and best his nature 
and destiny demand; and, therefore, no society or 
government has any just authority to restrain him of 
such natural liberty, nor can it impose upon him obli- 
gatious inconsistent with such liberty. He is obliged to 
obey the requirements of the authority under which he 
lives, or where he chooses to make his home ; and if 
he sees fit to become an integral member of such society, 
that he may claim its fullest protection, and enjoy its 
largest privileges, he is bound to serve it in common 
with the other members thereof, if need be, with his 
in-operty and life. But if he deems it best for himself 
to withdraw therefrom, and seek political and social 
associations elsewhere, he releases society and govern- 
ment from all further responsibilities on his account ; 
and he should be freed from responsibilities to them. 
The basis of allegiance to government and society, 
is gone, when the relation between the citizen and it, is 
dissolved and ended. 

g 390. The theory of indefeasible allegiance is incon- 
sistent with that natural liberty belonging to man, as 
essential to enable him to seek his highest good and ulti- 
mate destiny. Not being responsible to any authority 
for his parentage and birth, and being liable to be born 
under a government under which he cannot possess the 
rights essential to the unfoldment and perfection of his 
true manhood, it is his natural and inherent right to 
migrate therefrom in search of those associations he 
needs for his true development, and to make his home 
under the fostering care of such a government as will 
protect him in the enjoyment of that liberty which 



212 GOVERNMENT. 

belongs to liim, and which he mnst possess or fail of his 
birthright. But to enjoy the full advantages of citizen- 
ship he must become a citizen. He must be at liberty 
to pledge fall and undivided allegiance to the adopted 
government, free from, the claims of any other ; and 
thus to stand before the world, an equal citizen of such 
government, entitled to equal protection and to equal 
rights. Indefeasible allegiance is not consistent with 
the doctrine that governments are instituted for the 
benefit of the governed, and belong to the people. 
When a republican nation opens wide its political arms 
to receive and adopt as her own, the oppressed of other 
countries, she must necessarily repudiate the doctrine 
of indefeasible allegiance, or be unfaithful to her 
adopted citizens. 

g 391. Eawle, in his commentaries upon the consti- 
tution, speaking of the indefeasible allegiance of the 
native and adopted citizens, remarks that, "in the native, 
his allegiance is coeval with his life ; in him who 
migrates hither from another country, it commences as 
a permanent duty, with his naturalization ; in both it 
lasts till death, unless it is released by some x^rocedure 
mutual on the part of both the state and the individ- 
ual." But, he adds, " whether the individual alone can 
relinquish it, is a question which in this, as well as other 
countries, has been often discussed, and on which an 
opinion cannot be given without diffidence, since it has 
not yet received a decision in the highest tribunals of 
our country." He contuiues : "in the first x>h^ce we 
may dispose with little comparative difficulty, of the 
case of the naturalized citizen. His accession is volun- 
tary, and his engagement is, neither in terms nor its 
nature, limited to any time. He, therefore, binds him- 
self by contract for his life ; and the state, which, 
differently from the doctrine of the English and other 
monarchies, cannot afterward deprive him of the quality 
thus acquired, which cannot again, by its own act, 
convert him into an alien, is equally bound for the 
same term," and he quotes Locke as an authority upon 
this subject.^ With due deference to the learned com- 
mentator, the argument is not satisfactory. Unless the 
obligations of the adopted citizen are more permanent 
and binding than those of the native born, the reason- 
ing cannot be sound. If the native born citizen cannot 

1 See Rawle on the Constitution, p. 85; see Locke on Civil Government, ch. 8. 



NATURALIZATION. 213 

renounce his alleg'iance to liis government, lie cannot 
assume the obligations of allegiance to a new nation or 
sovereign; for it is quite clear that he cannot be under 
obligations of allegiance to two independent sovereigns 
at the same time. He can no more serve two masters 
politically, than he can religiously; for politically he is 
quite liable to be required to defend the one, and to 
defeat the other. Therefore, the hypothesis that an 
adopted citizen can be bound by an oath of allegiance to 
be loyal and true as a citizen of his adopted country 
implies that he can lawfully put off his native allegi 
ance. And if one can lawfully put off his native 
allegiance there is little ground for arguing that an 
adopted citizen may not, in the same manner, put off 
his adopted allegiance when he renounces the society 
and protection of his adopted country to enter into, and 
become the loyal subject of another. To deny this 
right of changing allegiance by changing countries and 
adopting a new home, implies that the sovereign or 
government has a kind of property in the subject 
or citizen; which doctrine is not recognized in America. 
g 392. Whatever may be the theory as to the founda- 
tion of a subject's obligation to be loyal and true to his 
government, the real basis of this obligation is to be 
found in that necessity which God has imposed as the 
only condition of social existence, security, order and 
public welfare. It; matters not whether man undertakes 
to obey the requirements of law, and to be loyal to the 
authority by which the society in which he resides is 
governed ; it is indispensably necessary that he should 
be obedient and loyal, while he continues a member of 
such society ; and it matters little whether his obedience 
be compelled upon the theorj^ of a contract, or upon the 
fact of an imperative necessity. But if he withdraws 
from such society, and goes beyond the jurisdiction of 
its laws, and becomes a member of another and an 
independent community, the same necessity is upon 
him in relation to his new association. He must be 
loyal to the government of which he becomes a citizen 
or subject, and must obey its laws. Says Mr. Eawle : 
"The compact created among the citizens by the 
declaration of independence, was well understood by 
themselves at the moment not to be of a temporary 
nature, and in the power of the individual at pleasure 
to dissolve. It was essential, not only to the perma- 
nence, but to the formation of the new government, 



214 GOVERNMENT. 

tliat every one, either taking an active part in its estab- 
lishment, or giving evidence of his consent by remaining 
within it, shonld be considered as bonnd to it so long as 
it continued." ^ It will not be contended that the 
inhabitants of the United States by their declaration of 
independence, intended, individually to bind themselves 
to forever surrender their right to emigrate to another 
country, if health, business or inclination should, in 
after life, prompt them to do so ; and that should tbey 
find in another climate, and under another government., 
a congenial home, that they would not be permitted to 
accept and enjoy it because they had in early life united 
in achieving the independence of the American nation. 
The argument in favor of indefeasible allegiance drawn 
from the implied compact of the people in declaring and 
achieving their independence, is neither forcible nor 
satisfactory. That they bound themselves together to 
maintain and defend their common independence, may 
be admitted ; but it is not thence to be inferred that 
they deprived themselves of the liberty of seeking other 
homes in other climes and under other governments. 

§ 393. Congress has power to establish uniform laws 
on the subject of bankruptcies throughout the United 
States. This power was given to congress as a means 
of carrying out the declared objects of the people in 
instituting the general government, to wit : to establish 
justice, insure domestic tranquillity, and promote the 
general welfare. Commerce, credit and confidence were 
the particular things which did not exist under the old 
eonfederatiou, and which it was a principal object of 
the framers of the constitution to create and establish. 
A vicious system of legislation, a system of paper 
money and tender laws, had completely paralyzed _ 
industry, threatened to beggar every man of property, 
and nllimately to ruin the country. The relation 
between debtor and creditor, always delicate and alwa.ys 
dangerous whenever it divides society, and draws out 
the respective x)arties into different ranks and classes, 
was in such a condition in the years 1787, 1788 and 
1789, as to threaten the overthrow of all government; 
and a revolution was menaced more critical and alarm- 
ing than that through which the country had then 
recently passed. The object of the new constitution 
was to arrest these evils ; to awaken industry, by giving 
security to property ; to establish confidence, credit and 

1 Rawle on the Const., pp. 86, 87. 



BANKRUPTCY. 215 

commerce, by salutary laws, to be enforced by tlie power 
of the whole community. The revolutionary war was 
over; the country had peace, but little domestic tran- 
quillity ; it had liberty, but few of its enjoyments and 
none of its security. The states had struggled together, 
but their union was imperfect ; they had freedom, but 
not an established course of justice. The constitution 
was therefore framed to form a more perfect union ; to 
establish justice ; to secure the blessings of liberty, and 
to insure domestic tranquillity.^ With respect to the 
internal administration of the general government, 
the objects of the constitution were, among other things, 
commerce, credit, mutual confidence in matters of 
l)ro])erty, and these required, among other means, a 
uniform standard of value, or medium of payment. 
Therefore, one of the first powers given to congress, is 
that of coining money, and regulating its value ; and 
fixing the value of foreign coins. And among the first 
jjrohibitions to the states, is that of coining money ; 
emitting bills of credit; making anything but gold and 
silver a legal tender in payment of debts, or making 
any law impairing the obligation of contracts. Thus 
the powers conferred on congress, and the restrictions 
imposed upon the states, clearly indicate the purpose of 
the people, when they committed to congress the power 
to make uniform laws on the subject of bankrujjtcies 
throughout the United States. 

§ 39-1. The general object of all bankrupt and insolv- 
ent laws is, on the one hand, to secure to creditors 
an appropriation of the property of their debtor, to 
the discharge of their debts 2^^^ tanto, whenever the 
debtor is unable to discharge the full amount of the 
same ; and, on the other hand, to relieve unfortunate 
and honest debtors from perpetual bondage to their 
creditors, either by unlimited imprisonment to coerce 
l)ayment, or by a right to appropriate the subsequent 
l)roperty of the debtor for that purpose. One of the 
first duties of legislation, while providing for the obliga- 
tion of contracts, is, to relieve the unfortunate and 
meritorious debtor from a slavery of mind and body, 
which deprives him in a great measure of the enjoyment 
of the comforts of life and the common benefits of 
society. But the power of affording this relief should 
be intrusted to the administration of those who are 
liable to be affected by it either as the debtor or creditor 

1 See Webster's remarks in Ogden v. Saunders, 12 Wheat., 247, 248. 



216 gover:n^ment. 

class. A local government should not possess the 
authority to absolve a debtor from the legal obligations 
to pay his debts contracted in another jurisdiction, for 
the reason that the laws of a state can have no force 
beyond its local jurisdiction. Thus, if 'New York by its 
laws, can relieve a citizen of his legal obligation to pay 
his debts or fulfill his contracts, entered into in other 
states, and made legally binding by the law of the 
place where the debt was contracted or the contract 
was entered into — then, indeed, the obligations of con- 
tracts are left to the legislation of the several states ; 
and the question of validity and of enforcement depends 
upon the place where the debtor is to be found when 
the fulfillment of his obligations is demanded. Then a 
valid contract entered into in New York may become 
invalid by the act of the party removing into another 
state, where such a contract is condemned, or deemed 
to be against the public policy of the state. It is con- 
sistent with the principles of republicanism to permit a 
state to impose the conditions of legal obligation arising 
out of the transactions of individuals within its terri- 
torial limits ; it may prescribe what shall be essential to 
the legal validity of any contract made within its juris- 
diction touching any subject ; as, that contracts of a 
certain description shall be in writing ; or shall be 
sealed ; or shall be witnessed ; or shall be executed with 
certain solemnities ; for these conditions are prescribed 
by those who are to be affected by, and who are also 
to administer the law. Bat a state has no authority to 
prescribe these conditions of validity to contracts made 
in other states, and valid by the laws of the state where 
made. Thus, New York cannot sa-y that a contract made 
in New Jersey and valid there by the laws of New 
Jersey, shall not be valid against the parties wherever 
they may be found ; because the contract when made 
in isTew Jersey was not only morally but it was legally 
obligatory upon the parties ; and it is not in the prov- 
ince of any other state to say that such obligation shall 
be destroyed or impaired by her local laws. 

§ 395. There is a wide distinction between a legal 
obligation and a moral duty to fulfill a contract entered 
into between two parties. The moral obligations of a 
contract do not depend upon the law of the place where 
the contract is made ; while the validity or legal obliga- 
tions imposed thereby, do. The duty of performing a 
contract entered into between parties where the subject 



BANKRUPTCY. 217 

thereof is moral and just, rests on principles of univer- 
sal law ; the obligation to perform it, rests upon the law 
of the place where the contract is made. Thns, two 
individuals may make a contract in a locality over 
"which no law of society extends. If the contract be in 
accordance with the principles of natural justice and 
universal law, it may be enforced in the courts of law 
in any civilized country; because being valid and obliga- 
tory accordhig to the principles of natural law, and 
there being no local law to prohibit the making of it in 
the manner and form iu which the parties bound them- 
selves, the legal obligation is perfect, and may be 
enforced in any court of law where perfect obligations 
are recognized. The prohibition of the constitution, 
that no state should make a law impairing the obliga- 
tion of contracts had undoubted reference to the legal 
obligation of contracts depending upon the law of the 
place where such contracts were made. The spirit of 
the provision is this : A contract which is legally bind- 
ing upon the parties at the time and place it is entered 
into by them, shall remain so, any law of the states to 
the contrary notwithstanding. 

% 396. In accordance with these principles, the power 
to make uniform laws on the subject of bankruptcies is 
committed to the legislative department of the general 
government, without any restriction of its authority 
in that respect. The intention of the people is well 
expressed by reading the constitution in this manner, 
No state shall pass any bill or law impairing the obliga- 
tion of contracts ; but congress may establish uniform 
laws on the subject of bankruptcies, throughout the 
United States. The general government has jnrisdic- 
tion over all persons and i)roperty within the United 
States, to execute the plenary power and authority of 
the nation in respect to all subjects committed to its 
jurisdiction. It can determine upon what conditions 
and in what degree individuals may be released from 
the complete fulfillment of their contracts. That is, 
as the supreme authority upon that subject, congress 
can by law determine the limit of legal obligations 
arising out of every species of indebtedness, and can 
prescribe the manner by which a party should proceed 
to obtain legal absolution of his debts. This princii)le 
recognizes the authority in the government to determine 
what shall constitute a legal obligation, and what shall 
cancel it. It recognizes the principle that legal obliga- 

28 



218 GOVERNMENT. 

tions as distiuguislied from moral, have their basis in 
the will of society or government, and can only be 
enforced by its laws; that society may determine by law 
what shall be essential to the validity of any contract 
upon any snbject, and the manner in wLjich legal obliga 
tion shall be enforced. Thns sovereignty has authority 
to prescribe the lex loci and the lex fori of the state ; and 
every government intrusted with the exercise of sover 
eign authority may exercise this power within the 
limits of its jurisdiction. Upon this theory, the several 
state governments, so far as they are not restrained by 
the constitution of the United States, may exercise this 
authority. This follows from the doctrine that there is 
but one authority to be administered by the general and 
state governments; and that is, the authority of the 
people as a nation. Each has the subject of its juris- 
diction assigned to it; the general government finding 
its jurisdiction in the subjects enumerated in the consti- 
tution of the United States; and the state governments 
finding the subjects of their jurisdiction in what remains, 
or in what are not enumerated or prohibited to them in 
the constitution. 

§ 397. From the foregoing, it would seem that the 
states may prescribe everything pertaining to the valid- 
ity of contracts to be made within their respective 
jiu-isdictions, so long as they do not interfere with any 
law of congress upon that snbject, or with the prohi- 
bitions of the constitution, and do not attempt to extend 
the operation of their laws into other jurisdictions. That 
is, a state may make any law which affects the validity, 
the construction, the duration, the mode of discharge, 
or the evidence, of any subsequent contract to be made 
within its jurisdiction, and thus may impair the contract. 
Thus, the law which declares that no action shall be 
brought whereby to charge a person upon his agreement 
"to pay the debt of another, or upon an agreement relat- 
ing to lands, unless the same be reduced to writing and 
signed by the parties, impairs a contract for that pur- 
pose, made by parol. But when the state has by law 
prescribe<l the manner in which contracts shall be exe- 
cuted and evidenced, in order to be binding, the legal 
obligation of the contract upon the parties depends upon 
their compliance with these statutory requirements. If 
such essential requirements are not complied with by 
the parties, the contract does not become obligatory 
upon them ; and, consequently, such law does not come 



BANKRUPTCY. 219 

■within the inhibitions of the constitution, prohibiting 
tlie states from making laws impairing the ohUgatioiis 
of contracts. Thus, the state may, by law, determine 
what shall be essential to the validity oi* a contract made 
witliin its jurisdiction; how the same shall be proved; 
by what rules it shall be construed; how long it shall 
continue to bind the parties thereto; and in what man- 
ner its obligations shall cease or be discharged; but 
such laws are applicable only to contracts made within 
the same jnrisdiction, and subsequent thereto. Tor a 
contract which has once become obligatory upon the 
parties under the law of the time, and of the place of its 
execution or performance, cannot be modified, limited 
or restrained in its legal eft'ect or operation bv auv 
state law.i . ' ^ ^ 

% 3!)8. The power to make uniform laws on the sub- 
ject of bankruptcies throughout the United States, 
committed to congress by the constitution, is not limited 
in its application to contracts made subsequent to the 
enactment of such laws. The restrictions of the con- 
stitution apply only to the states, leaving to congress 
the unlimited authority of the nation, over such subject. 
Congress, therefore, has plenary authority to pass a 
bankrupt law which shall be binding throughout the 
United States, affecting civil contracts of every charac- 
ter within the department of commercial intercourse, 
and determining upon what conditions, and in what 
manner they may be discharged. Twice congress has 
passed a bankrupt law; and permitted the same to 
remain in force long enough to allow the most unworthy 
class of debtors, who were ever ready to evade the obli- 
gations of their contracts, to avail themselves of their 
provisions; but they repealed those laws, before the 
more meritorious class of debtors had concluded to seek 
their aid. In general, honest men are averse to the avoid- 
ance of their contracts ; and will struggle long to comply 
with their obligations, before they will avail themselves 
of either an insolvent or bankrupt discharge. Conse- 
quently, they are usually the last to apply for thQ benefit 
ot such laws, while on the other hand, men less scru- 
pulous, are eager to avail themselves of every advanta<»'e, 
and are usually iU first to appropriate to themselves 
the benefits of insolvent and bankrupt laws. The brief 
duration of the bankrupt laws hitherto enacted by con- 
gress, has, in general, had the effect to do all the 

I See Ogden v. Saunders, 12 Wheat., 213. 



220 GOVERN"MENT. 

miscliief bankrupt laws are liable to do, without mncli of 
their accompanying benefits ; for by the time the large 
mass of those who were justly entitled to its aid had 
concluded to ask for relief, the laws were repealed. 
There can be no doubt that an efficient and just system 
of bankrupt laws is demanded by the people of the 
United States, and that it is the duty of congress to 
l)rovide such a system. They should make it as perfect 
as possible, and then amend its provisions fi'om time 
to time as experience demonstrates the necessity. In 
this way, a wise and just system would eventually be 
adopted, which would establish justice and promote the 
general welfare of the nation. 

CHAPTEE XII. 

POWER OE CONGEESS TO COIN MONEY, &0. 

% 399. The congress shall have power to coin money, 
regulate the value thereof, and of foreign coin, and fix 
the standard of weights and measures.^ This power is 
plenary and exclusive in congress. They have all the 
l)ower over the subject of the currency possessed by 
the nation ; and whatever they do in that respect is 
done by the authority of the nation; because the con- 
stitution has given them auilimited authority to coin 
money, regulate its value, and the value of foreign coin. 
Money is the universal medium by which all commer- 
cial and exchange values are determined ; and it 
represents the respective values of all commodities. 
It is the measure by which the equivalents of com- 
modities are ascertained. This power is one of the 
l)rerogatives of sovereignty, and implies authority over 
the property interests of the nation. The i)ower to coin 
money and affix a value at which it shall be taken in 
exchanges, or in satisfaction of debts, or of damages 
to persons and property, belongs to that absolute sover- 
eignty which can be found only in the nation, and Avhich 
is responsible to no other earthly power. " As money 
is the medium of commerce, it is the king's prerogative 
as the arbiter of domestic commerce, to give it authority 
and make it current. The coining of money is, in all 
states, the act of sovereign power. The denomination 
or value for which the coin is to pass current, is also in 
the breast of the king." ^ 

1 Art. 1, 2 8, cl. 5, Const, U. S. 2 1 Bl. Com., 276. 



POWER TO COIN" MONET. 221 

^g 400. To coin money and regulate its value as an act 
of sovereignty, involves the right to determine what 
shall be taken and received as money ; at what measure 
or price it shall be taken ; and what shall be its effect 
Avhen i)assed or tendered in payment or satisfaction of 
all legal obligations. The act of coining money con- 
sists in affixing to that which is to constitute money, 
the stamp or seal of sovereign authority, by which it 
may be recognized and known in market as being 
authoritatively entitled to be received at the price or 
value marked thereon. The authority which coins 
or stamps itself upon the article, can select what sub- 
stance it deems suitable to receive the stamp, and pass 
as money; and it can affix what value it deems proper, 
independent of the intrinsic value of the substance 
upon which it is affixed. The usual substances which 
have been selected for the purpose "of being used as 
money, are the various metals, as silver, gold, copper, 
Ji)rass and such alloys as the sovereignty in its pleasure 
adopts. The currency value is in the stamp when used 
as money, and not in the use of the metal, independent 
of the stamp. In other words, the money quality is the 
authority which makes it current, and gives it power to 
accomplish the purpose for which it was created. i To 
coin or stamp money, and regulate its value, includes 
the whole power of sovereignty in respect to currency. 
It includes the authority to select the substance to 
receive the impression ; to determine what impression 
shall be enstamped thereon ; what shall be its office 
as a medium of exchange ; at what price it shall be 
received; and what shall be the penalty to be inflicted 
for discrediting, counterfeiting, or in any manner inter- 
fering with its legal and authoritative value. Because 
gold and silver have usually been selected as the basis 
of currency, the popular idea of value attaches to the 
metal rather than to the royal or sovereign authority 
stamped upon it ; and while they recognize the author- 
ity of the government to change the relations between 
the intrinsic value of the metal and the current value 
of the coin, they are slow to understand that such rela- 
tion is arbitrary, and depends solely upon the will of 
the sovereign. 

g 401. By keeping constantly in mind that the quality 
of money or legal currency, consists in the enstamped 
authority of the government upon that which is used 
as such • and that the authority to coin money and affix 



222 GOVERNMENT. , 

its value, involves the wLole power of sovereignty over 
the subject of legal currency — to select what substance, 
affix what stamp, and ordain what value, it pleases — the 
whole law upon the subject of money, as a currency, 
and money as a commodity, becomes comprehensible. 
But to confound the legal quality of money, with the 
commercial value of that which is used to receive 
the royal impression, begets infinite difficulty, because 
there is no necessary relation between the two. Gov- 
ernment, like the Spartan law-giver, may put its stamp 
upon leather, and make that currency ; and so long as 
it can provide against the counterfeiting of the same, 
and thus can regulate the quantity in use, it can give 
to its stamp upon leather the same money value, as if 
put upon gold, or silver or any other substance. Thus 
government may put its royal or sovereign stamp upon, 
paper, affixing its money value, and if it limit the quan- 
tity and provide fully against the counterfeiting of it, 
it will have the same currency value as gold or silver,, 
or any other substance. It must be remembered that, 
legally speaking, money is not a commodity ; and com- 
merce can make it such only by dealing with that upon 
which the money quality is impressed. 

g 402. Much has been said about paper monej', and 
gold, silver and copper money; but all such language is 
deceptive. There is no such thing legally as gold and 
silver money and paper money. Money, as the measure 
of price or value, is the sovereign authority impressed 
upon, and attached to, that which is capable of taking 
and retaining the impress of that authority. It is the 
recognized presence of sovereignty in the market, and in 
the court, applying the measure, and determining the 
equality of exchanges of commodities between subject 
and subject ; between peasant and prince ; between 
crown and people. As a medium of exchange, as a 
means to an end, it has no value but the sovereign will 
recorded upon its face ; and in respect to its use its value 
is as unchangeable as the authority that created it. It 
measures all values by its own; and can know no other 
measure of value. Its value being fixed by the will of 
the sovereign, and not by the intrinsic qualities of that 
upon which it is impressed, legally, it cannot vary. 
Its relative proportion to other things may disturb their 
relative values, but its legal value stands fixed and 
immutable, while the price of commodities measured 



POWER TO COIN MONET. 223 

by it, rise and fall. The pliilosoplier can explain the 
reason, but be cannot change the law. 

g 403. The act of coining money consists in impart- 
ing to any substance this legal currency quality, by 
which it can legally be used as a medium of exchange, 
without permitting its value or authority to be ques- 
tioned in the domestic market. That upon which the 
stamp is placed is called coin; the act of stamping is 
called coining ; and as the practice of all governments 
using currency, has been, generally, to place its money 
stamp upon metals of some kind, the common idea of 
coin is, tbat it must be a metal, as a substance distin- 
guished from other substances. But this rests solely 
in the discretion of the sovereign or sovereignty; whether 
the coin shall be metal, leather, parchment, paper, or any 
other substance, is a question of expediency — of politi- 
cal economy — and not of authority. The authority 
selecting the substance to coin, if wise, will consider 
the fitness, the adaptation, the economy, the necessity 
for the public use. There is a need in every society for 
a medium of exchange — for money. Hitherto no nation 
or state has discovered the means of dispensing with it. 
It is a public necessity as well as private; and should be 
l)rovidedin.such a way as to subserve the public as well 
as i^rivate use. There are times Avhen large expenditures 
are required to be made, beyond the ordinary capacity 
of the currency to represent them. There must neces- 
sarily exist the authority to adapt the currency or 
money to these public exigencies. The necessity which 
requires that it should be used at all, requires that it 
should be made adequate to any public emergency. 
The sovereignty or sovereign is then authorized by 
sovereign necessity, to coin the necessary amount of 
money to answer as a means of making the purchases or 
exchanges demanded. If that be neglected, the respon- 
sibilities of a state or nation ruined, will attach. The 
necessity which requires money as a medium of exchange 
at all, requires that the public authority should make 
the supply at least equal to the imperative demand 
of the public welfare; and the government would be as 
derelict in omitting this, as any other duty to the public. 

S 404. The United States, as a nation, has the same 
authority to coin money and regulate its value, as other 
sovereign nations. It is subject to the same necessities, 
and can adopt the same faciUties for adapting the cur- 
rency to the needs of the nation ; and there is no earthly 



224 GOVERNMENT. 

authority to call it to an account for so doing. In insti 
tutiug the general governraeut for administering its 
authonty in respect to all subjects enumerated iu the 
constitution, and for the purposes therein named, it 
conferred upon congress the unlimited authority to coin 
money and regulate its value ; that is, it committed the 
whole subject of creating and regulating the legal cur- 
rency to congress; so that congress, as the national 
legislature, is invested with j)lenary powers upon this 
subject. It was the intention of the people that 
this power should be exercised in such a manner as to 
make the currency of the nation adequate for any 
emergency that could arise. The government was 
instituted, and the powers were conferred, that they 
might be used iu such a manner as to make every 
department of administration contribute to the declared 
end the people had in view, to wit, to the establishment 
of justice, to providing for the common defense, and 
promoting the general welfare. For these, among other 
I)urposes, congress was empowered to coin money and 
regulate its value, and was further authorized to make 
all laws necessary and ijroper for carrying into execu- 
tion this power. The pretense for attempting to restrict 
the powers of congress over subjects committed to its 
jurisdiction, based upon the assumption that congress 
is a body separate from the people, is without founda- 
tion. The jjeople are as eminently and potentially 
present in congress, to administer their own authority 
by legislation, as they were in the conventions that 
framed their government, and established the mode of 
its administration. Therefore they may be as safely 
intrusted with the exercise of their authority to coin 
money and regulate its value, as they were to institute 
the government, and ordain by whom that x)ower to 
coin money, &c., should be exercised. 

S 405. As the people of the United States conferred 
upon congress plenary authority to coin money and 
regulate its value, and denied to the states the exercise 
of such powers, they thereby made it the duty of 
congress to make all necessary legal provisions for 
supplying the nation with money as a medium of 
exchange. This proposition admits of no denial. As 
a sovereign nation, the people had authority to provide 
for the creation of a legal currency, which should be of 
equal value as money, throughout the United States. 
It was necessary that this authority should be exercised 



POWER TO COIN MONET. 225 

by some one, to provide sncli currency. It could 
be exercised by no authority not sovereign, and not 
coextensive with the United States. It could therefore 
be exercised by no other than the government of the 
United States. In the distribution of subjects of juris- 
diction between the general and state governments, 
that of coining money and fixing its value, that is, that 
of providing a legal measure of value or currency, was 
committed to congress, not by limited or restricted 
terms, but in the most liberal and unqualified ; so that 
congress is vested with all the authority of the nation 
in that respect. Congress is the only body authorized 
to provide for this individual, state and national neces- 
sity. The whole duty and responsibihty rests upon it, 
to supply, under all circumstances, so much money or 
currency, or to provide for the same, as the exigencies 
of the public or nation may require. It is no excuse 
that there is not gold enough, or silver enough in the 
caiuitry to furnish or supply the amount. The authority 
of the nation to supply itself with the amount of money 
necessary for any emergency, is not confined to the use 
of any particular metal, or to any metal at all. The 
quality of money is neither gold nor silver nor any pre- 
cious metal. It is simidy the sovereign authority of 
the nation so impressed upon any substance as by its 
presence to represent such authority in determining at 
what price or value it shall be received in discharge of 
legal obligations.^ 

g 40G. The object of the grant of this power to con- 
gress is to give uniformity of value as a standard of 
price throughout the union. The power of coining 
money is uniformly exercised by the sovereign author- 
ity, for the pur[)ose of supplying a uniform currency to 
the home market. The necessity for such a currency, 
denominated money, is imperative; and, therefore, the 
duty of the government intrusted with the exercise 
of this authority is imperative. This duty requires it 
to supply a currency of such quality and in such an 

» As congress alone has the power to coin money and fix its legal value, that 
is, has the power to determine what shall be received as money, and at what 
price it shall be received, it must adopt such means in the exercise of such 
power, as will enable it to accomplish the end for wliich such power was given. 
During the recent civil war in tlie United States, the current expenses of tlie 
government were much larger than could be met by tlie use of all the gold, 
silver and copper coin in the country. Thus, for four years the average 
expenditures of the government were about S*W,000,0:>0 per annum; yet the 
whole amount of gold and silver coin in tlie countrv, north and south, was 
less than S250,000,0:)0. Under these circumstances, the continuance of the gov- 
ernment, required the exercise of the plenary powers of congress to supply 
the nation witli tlae means of defending its existence, by a resort to a legalizea 
paper currency. 

29 



226 GOVERNMENT. 

amount as to answer the imperative demands of the 
public exigencies. It should also provide against the dis- 
crediting, debasing, or the counterfeiting of the cur- 
rency, or with interfering in any manner with its 
authoritative value. Every civilized government has 
found it necessary to provide itself with such cur- 
rency, and to guard against its debasement, and the 
counterfeiting thereof. The money thus created by 
the government, and having its authority as to the price 
at which it shall pass, stamped upon it, becomes a legal 
tender in discharge of all legal demands for value, 
under such regulations as the law-making power pre- 
scribes. What shall be permitted to be offered or 
tendered in discharge of such obligations, depends upon 
the authority of positive law. ^ 

§ 407. Legal obligations are such as are created by 
law ; and can only arise in accordance with the require- 
ments of law. When the law declares that contracts 
made for the loan of money reserving for its use an 
amount greater than seven per centum per annum, are 
usurious and void ; no legal obligation arises from the 
making of such contracts. When it declares that all 
contracts by which one man undertakes to answer for 
the debt, default or miscarriage of another, to be valid 
and obligatory, shall be in writing and be signed by the 
parties ; a contract of that character by parol merely, 
raises no legal obligation. And thus with every con- 
dition which the law-making power sees fit to impose. 
Inasmuch as the obligatiou is created by law, it can 
also be discharged by law ; that is, it can be discharged 
in any manner prescribed by law. For it is a principle 
of general application, that the power which can create 
an obligation can likewise discharge it. An obligation 
which can be enforced by law is called a perfect obliga- 
tion. Therefore, all perfect obligations are such as 
the government undertakes to enforce. But it is in the 
pleasure of the sovereignty to determine what shall be 
essential to a perfect obligation, and upon whal^ con- 
ditions that obligation may continue, and by what 

1 " But on the great question, whether the government can make this money 
—treasury notes— legal tender, the court will not fail to observe that the very 
term. ' legal tender,'' imports that the subject is one, by the common under- 
standing' of mankind, belonging in every sovereignty, to tlae law-making 
power. It has been I'ecognized as such in every civilized nation. Gold and 
silver have been a legal tender with us. Not so in Great Britain. Tliere, 
except for small sum-;, it is gold, or the notes of the Bm'c of E.i^land. Not so in 
France. Ttiere it is silver coin wid gooernment paper." (Bim:irks of Hon. John 
K. Porter in the case of The MstroooUlan Bank et al., v. Van D.i/ke, Superintend- 
ent of the Bank Department of the Stale of New York, before the Court of Appeals 
June, 1863.) 



POWER TO COIN MONEY. 227 

means it may be discharged. Hence arises the author- 
ity of government to provide by law that a certain class 
of contracts shall not be deemed legally obligatory; 
to provide how contracts shall be executed to become 
obligator}'-; to provide how they shall be established in 
conrt to be entitled to judicial recognition; to deter- 
mine by what rules they shall be construed, and their 
purpose be ascertained ; and to provide by bankrupt 
and insolvent laws, or by limitations, or otherwise, how 
tliey may be discharged. It is said, that men may 
make in respect to their own, what contracts the}^ 
please, so long as they do not interfere with the rights 
of other i)arties. That may be true ; and they may do 
as they please about fulfilling them, unless they comply 
with the requirements of the law in the making of them. 
It is to be remembered that individuals do not make 
the law, and cannot create the terms of legal obligation. 
The public authority — the law-making power — creates 
the conditions, and leaves each member to act his own 
pleasure in assuming contract obligations. But it will 
undertake to enforce no obligations not created by law. 
The authority to determine what shall amount to a legal 
obligation, involves the power to determine by what 
means that obligation may be discharged. Every gov- 
ernment exercising the powers of sovereignty, unless 
restrained in that particular respect, has authority to 
provide for a legal tender of performance which, if 
rejected, discharges the obligation. That tender may 
be money, labor, chattels, or anything the sovereignty 
sees fit to prescribe. 

§ 408. The power to coin money, and to establish the 
value thereof, being exclusive in congress, as the national 
legislature, it has been doubted by eminent statesmen 
whether the states can authorize the issuing of bank 
paper to be circulated and used as cnrrencj^ Mr. 
Webster, in his speech on the Bank of the United 
States May 25 and 28, 1832, reasoned thus: " The states 
cannot coin money. Can they, then, coin that which 
becomes the actual and the almost universal substi- 
tute for money? Is not the right of issuing paper 
intended for circulation in the place, and as the repre- 
sentative of metallic currency, derived merely from the 
I)ower of coining and regulating the metallic currency ? 
Could congress, if it did not possess the power of coining 
money and regulating the value of foreign coins, create 
a bank with power to circulate bills ? It would be diffi- 



228 GOVERNMENT. 

cult to make it ont. Where, then, do the states, to 
whom all control over the metallic currency is altogether 
prohibited, obtain this power? It is true that, in other 
countries, private bankers having no authority over the 
coin, issue notes for circulation. But this they do 
always with the consent of government, expressed or 
implied ; and government restrains and regulates all 
their operations at its pleasure. It would be a startling 
proposition in any other part of the world, that the 
prerogative of coining money held by the government 
was liable to be defeated, counteracted or impeded by 
another prerogative, held in other hands, of authorizing 
a paper circulation," &c. It is to be remembered that 
bank notes authorized by the states to be circulated by 
banking associations or companies, are not, and cannot 
be made, a legal tender for the discharge of legal obliga- 
tions ; for the states are prohibited by the constitution 
from making anything but gold and silver coin a tender 
in payment of debts. Bank paper, therefore, is receiv- 
able, or not, at the pleasure of each member of society. 
But if he do consent to receive it as money, it shall 
have the effect of money to bind him ; or to discharge 
legal obligations to him, so far as they are created and 
enforced by the state. This seems to be the extent of 
the authority required to permit private banking, and the 
issuing of bank notes to circulate as currency. Where 
the general government does not interfere to pre- 
vent the circulation of such paper as currency, it would 
seem that the states are transcending no authority 
on their part in authorizing such circulation, leaving 
each citizen to exercise his own pleasure in receiving 
and using the same. It may be a question of expe- 
diency — of economy; but it would seem not to be a 
question of authority. 

§ 409. Besides the power to coin money and regulate 
its value, congress has also the power to fix the standard 
of weights and measures- The whole clause together, 
gives to congress the power to determine the measure 
of all values, and of all quantities. This power is given 
to the general government for the sake of uniformity so 
essential to the convenience of commerce. The atten- 
tion of congress has frequently been called to this 
subject, but owing to the manj'- difficulties attendant 
upon it, they have never fully exercised the power. 
John Quincy Adams, as secretary of state, made an 
able report upon the subject on the 22d of February, 



WEIGHTS AND MEASURES. 229 

1821, which was referred to a select committee. Among 
the recommendations of that committee were the follow- 
ing : that the president should cause application to be 
made to the English government to allow models of the 
yard, the Winchester bushel, wine gallon and pound — 
avoirdupois — to be procured from its offices; — that the 
yard should be traced upon the rod of platina in the pos- 
session of the department of state, on which the French 
metre is traced; — that the models should be made with 
the utmost accuracy that the art and science of England 
can give, and if satisfactory to congress, should be 
declared the standard yard, bushel, liquid gallon and 
pound of the United States. The committee were of 
the opinion that the standard of length and weight 
should be of platina ; because of its very extraordinary 
properties ; its unequaled specific gravity ; its infusi- 
bility, its durability, its power of resistance against all 
the ordinary agents of destruction and change.^ The 
committee concluded their report by recommending 
that the president of the United States be requested — 
if the consent of the government of Great Britain 
should be given — to cause to be traced on a rod of 
platina the yard of the year 1601, which is kept in the 
British exchequer; — that he cause to be made of platina 
a pound of the weight in value of the English avoirdu- 
pois pound; — that he cause to be made of whatever 
material he shall deem best for standards of those meas- 
ures, a vessel of the same capacity as the standard 
Winchester bushel ; and also a vessel of the same 
capacity as the standard wine gallon of England. They 
also recommended that the president be requested to 
cause to be made models of these weights and measures, 
for distribution among the several states,^ but these 
recommendations seem never to have been carried into 
effect, and as yet each state exercises the authority of 
fixing its own standard of weights and measures. 

g 410. Congress shall have power to provide for the 
punishment of counterfeiting the securities and current 
coin of the United States. Under this provision, con- 
gress has power to punish the act of counterfeiting 
and also the bringing of counterfeited coin into the 
country from foreign countries, and the passing and 
uttering of the same.^ The authority to punish for the 

1 Annals of Congress — First session XVIIth congress, vol. 2, p. 1251, 

a Id., 1253. 

3 United States v. Marigold, 9 How., 560. 



230 GOVERNMENT. 

act of connterfeiting the coin of the United States is 
exclusively in congress; but the states niay i)rovi(le 
against the circulation of such coin within tlieir res[)ec- 
tive jurisdictions, by penal enactments.^ The right of 
the local government to punish for cheats and frauds 
practiced within their respective limits is unquestion- 
able, irrespective of the instrumentality by which it is 
done. The authority to punish the act of counterfeiting 
the coin of the United States, would seem to be inci- 
dent to the power of coining money and regulating 
its value. There would be little jjractical value in the 
exercise of the power to coin money and regulate its 
value, if the authority to protect the public against the 
frauds incident to counterfeiting such coin or money, 
was not also to attend the power. In truth, its value 
could not be regulated to any practical purpose, while 
counterfeiting thereof should be permitted. Bat as the 
whole subject of currency is virtually committed to 
congress, to them properly belongs the power to pro- 
vide, by penalties, for the i)reservation of its character. 
§ 411. The principle underlying the distribution of 
powers between the general and state governments, 
determining what authority should be exercised by the 
one or by the other, or concurrently, is this : Those 
interests which were common to the whole ])eople as a 
nation, and in the provisions for which, all parts of 
the country were alike interested, were committed to the 
supervision ajid control of congress, as the representa- 
tive body of the nation, to be administered upon by all 
the people. Those which were local in their character, 
affecting only the local and domestic interests of each 
particular state, depending upon local circumstances 
and interests for the proper character of governmental 
administration, were left to be exercised by those whose 
interests were especially to be affected, and who knew 
best what should be the special adaptations of adminis- 
tration to those circumstances and interests. Those 
powers which might be exercised concurrently with 
safety to the local and general welfare, and without 
conflict, were left to be concurrently exercised, until 
congress, as the representative body of the nation, 
should especially assume the exercise of such powers, 
when they would then be deemed to be exclusive in con- 
gress. Such are the general principles underlying the 
distribution of powers to be exercised by the general 

1 Fox V. State of Ohio, 5 How., 433; see also 14 id., 13. 



PUNISHMENT FOR COUNTERFEITING. 231 

and state governments. In accordance with this rule, 
the common currency of the country, and the uniform- 
ity and stability of its value, are subjects in which all 
parts of the country are alike interested ; also the pun- 
ishments by which the counterfeiting of the coin and 
the discrediting of the currenc}^ thereby are to be pre- 
vented, are alike matters of importance to all sections 
of the country. But the possessing of counterfeited 
coin or currency with intent to pass the same ; or the 
uttering and passing the same upon citizens or inhabit- 
ants of the state, Avith intent to defraud them ; is also 
an offense against the local and domestic welfare of the 
l)eople ; and is properly the subject of local inhibition 
and punishment. Keeping this rule in view, it is easy 
to determine what powers ought to be deemed exclusive 
in congress, and what may be safely treated as concur- 
rent with the states. 

§ 412. As illustrative of this rule, the remarks of 
Justice Daniels^ in the case of the United States v. 
Marigold^ are pertinent. He said the stress of the 
argument in the case of Fox v. The State of Ohio'^ was 
to show, that the right of the state to punish the cheat 
had not been taken away from her by the express terms, 
nor by any necessary implication, of the constitution. 
It claimed for the state neither the power to coin money, 
nor to regulate the value of coin, as established and 
regulated under the authority of congress. In illustra- 
tion of this right in the state, and in order merely to 
show that it had not been taken from her, it was said 
that the punishment of such cheat did not fall within 
the express language of those clauses of the constitu- 
tion which gave to congress the right to coin money 
and regulate its value, or to provide for the punishment 
of counterfeiting the current coin. It was also said by 
this court, that the fact of passing or putting off a base 
coin did not fall within the language of those clauses 
of the constitution, for this fact fabricated, altered or 
changed nothing, but left the coins, whether genuine 
or si)uuious, precisely as before. But this court have 
nowhere said that an offense cannot be committed 
against the coin or currency of the United States, 
or against that constitutional power which is exclu- 
sively authorized for public uses to create that currency, 
and which, for the same public uses and necessities, is 
authorized and bound to preserve it ; nor have they said 

19 How., 560. 20 id., 433. 



232 GOVERNMENT. 

that the debasement of the coin would not be as effect- 
ually accomplished, by introducing and throwing- into 
circulation a currency which was si)urious and simulated, 
as it would be by the actually making counterfeits — 
fabricating coin of inferior metal. On the contrary, we 
think that either of these proceedings would be equally 
in contravention of the right, and of the obligation per- 
taining to the government to coin money, and to protect 
and i)reserve it at the regulated or standard rate of 
value. With a view to avoiding conflict, this court, in 
the case of Fox v. The State of Ohio, have taken care 
to point out, that the same act might, as to its character 
and tendencies, and the consequences it involved, con- 
stitute an offense against both the state and federal 
governments, and might draw to its commission the 
penalties denounced by either, as appropriate to its 
character in reference to each. We think this distinc- 
tion sound, as we hold to be the entire doctrines laid 
down in the case above mentioned, and urged them as 
being in no wise in conflict with the conclusion adopted 
in the present case.^ 

% 413. " Congress shall have power to establish post- 
offices and post-roads."^ There has been much contro- 
versy as to the extent of the powers granted by this 
clause of the constitution. One party contends that the 
power to establish jjost-offices and post-roads includes 
only the power to direct where post-oflices shall be kept, 
and on what roads the mails shall be carried; — that the 
power to establish post-roads is simply the power to 
designate what roads shall be mail roads, and to estab- 
lish the right of passage or way along them when so 
designated. President Monkoe, in his message to con- 
gress of the 4th May, 1822, discussed this question at 
length. He contended for the strict construction of this 
power. His argument was, that the sense in which 
words are commonly used is that in which they are to 
be understood in all transactions between public bodies 
and individuals; — that the intention of the parties is 
to prevail ; and that the way to ascertain that intention 
is to give to the terms used their ordinary import ; that 
the import of the word establish, and the extent of the 
grant which it controls, as understood by enlightened 
citizens, is satisfied by giving to congress the power to 
fix on the towns, court houses, and other places through- 
out our union, at which there should be post-offices; 

i 9 How., 560. 2 Art. 1, ? 8, cli. 7, Const. U. S. 



POST-OFFICES AND POST ROADS. 233 

the routes by wliicli the mails sliould be carried from 
0IW3 post-office to another, so as to diffuse iutelligence 
as extensively, and make the institution as useful as 
possible ; — to fix the postage to be paid on every let- 
ter and packet thus carried, to support the establishment; 
and to protect the post-offices and mails from robbery, 
by punishing those who should commit the offense; — 
tiiat the use of an existing road by the stage, mail carrier 
or post boy in passing over it as others do, is all that 
would be thought of, the jurisdiction and the soil 
remaining to the state, with a right in the state, or 
those authorized by its legislature, to change the road 
at pleasure. The president further contended that the 
intention of the parties was also to be inferred from 
their action under the confederate government ; — that 
there was a grant of power for the same purpose, 
in these words: "The United States in congress assem- 
bled, shall have the sole and exclusive right and power 
of establishing and regulating i)ost-ofitices from one 
state to another throughout the United States, and of 
exacting such postage on the papers passing through 
the same, as may be requisite to defray the expenses 
of the said post-office;" — that the word establish, was 
the ruling one in that instrument, and was there intended 
and understood to give the power simply and solely to 
fix where there should be post-offices ; — that post-offices 
were made for the country, not the country for post- 
offices; — that they are the offspring of improvement, 
and never go before it; — that no example could be 
given of a post-office being established without a view 
to existing roads; — and that in no case prior to the 
ado[)tion of the constitution, had a single road been 
made for the sole purpose of accommodating a post- 
office; — that in the grant of this power it was the 
iutention to limit it to the same extent as had before 
been practiced; — that these conclusions are further 
confirmed by the object of the grant, and the manner 
of its execution ; — the object was the transportation of 
the mails throughout the United States — the manner 
of executing it admitted of their being carried on horse- 
back as had often been done; — that the object of the 
graut, and the means of executing it were so sim[)le 
that it would excite surprise if it should be thought 
l)roper to appoint commissioners to lay off the country'- 
on a great scheme of improvement, with the power to 
shorten distances, reduce heights, level mountains, and 

30 



234 GOVERNMENT. 

pave surfaces; — that if the United States possessed the 
power contended for in the grant, they might, in adopt- 
ing the roads of the several states for the carriage of 
the mail, assume jurisdiction over them, and prechide 
a right to interfere with or alter them ; — they might 
establish turnpikes and exercise acts of sovereignty 
necessary to protect them from injury and defray the 
expense of repairing them; — that in this way a large 
portion of the territory of the state might be taken 
from it. 

g 414. President Monroe, like others of that class, 
who contend for a strict construction of the powers 
granted to congress, argues upon the hypothesis that 
the people were parting with authority, by conferring 
power upon the general government; that they were 
nominating in the bond the x)recise amount of power 
they were willing to surrender to the general govern- 
ment, in consideration of the benefits the. government 
was required to render in return; — that the nominations 
of the bond carried only " the pound of flesh," but not 
one drop of blood. But such hypothesis is untrue. The 
people were proposing to surrender nothing ; they were 
instituting a government by which to administer their 
own authority in matters pertaining to the security and 
welfare of the nation. The government they were insti- 
tuting was their own; the congress they were empower- 
ing to act was their own. It was to be a congress of 
their own chosen men ; selected from among themselves 
to administer for their benefit. The institution of the 
general government was simply an act of the nation 
providing the instrumentality by which they, as a 
nation, could realize the benefits of nationality ; and 
what is termed the " enumerated powers," in the consti- 
tution, is rather an enumeration of subjects over which 
the government is to exercise jurisdiction with the ple- 
nary powers of the nation in respect thereto. Thus 
congress — the national legislature — has power to estab- 
lish post-offices and post-roads — by which is plainly 
meant, the subject of post-ofiices and post-roads, is com- 
mitted to the jurisdiction of the general government; 
to be administered upon by the nation ; and congress 
has power to make all laws necessary and proper for 
such purpose. The terms, congress shall have power to 
regulate commerce with foreign nations; and among 
the several states; — to establish an uniform rule of 
naturalization — and uniform laws on the subject of bank- 



POST-OFFICES AND POST-ROADS. 235 

rnptcies — to coin money, regulate its value, and the 
value of foreign coin — to establish post-offices and 
post-roads, &c., simply mean, in effect, that these sub- 
jects are committed to the jurisdiction of the general 
government to be administered upon by the nation. 
There is, then, no foundation for claiming a strict con- 
struction of these powers ; on the contrary, the spirit 
and reason of the instrument demand that the general 
government shall exercise, to the fullest extent, the 
authority of the nation, over these subjects, whenever 
the safety and welfare of the nation demand it. There 
is also the further idea, of antagonism between state 
and national interests. "In this way," says President 
Monroe, " a large portion of the territory of every state 
may be taken from it." He seems to bave overlooked the 
fact that the citizens of the states and of the nation are 
identical. That the establishment of these i)ost-offices 
and post-roads is for the benefit of these citizens, and 
are to be established by themselves, for their own 
convenience. That the congress thus empowered is 
composed of their own chosen representatives, renewed 
every two years; — that the nation instituting the gov- 
ernment and committing to its jurisdiction these sub- 
jects, was thereby providing for the administration of 
this government, and the exercise of these powers by 
themselves; — that they are as potentially present m 
the administration, as they were in the institution of the 
general government. That the idea of delegating 
powers in the sense of parting with power is decei)tive, 
and has arisen from the dangerous theory of absolute 
sovereignty in the states, as essential elements of 
national existence and authority. 

§ 415. When it is considered that, by the terms of the 
grant, the whole subject of establishing post-offices and 
])OSt-roads is committed to the general government to 
be provided for by the legislation of congress, it will be 
'l)erceived that the questions discussed are questions of 
express powers, not of implied ones. The express provi- 
sions on this subject read thus : Congress shall have 
power to establish post-offices and post-roads ; and to 
make all laws necessary and proper for carrying into 
execution such power. Everything legitimately con- 
nected with the subject of establishing post-offices and 
post-roads, and extending the benefits thereof to the 
people of the United States, are subjects within the con- 
trol of congress under the express powers of the grant. 



236 GOVERNMENT. 

Says President Monroe in his message above quoted, 
" whatever is absolutely necessary to the accomplish- 
ment of the object of the grant, though not specified, 
may fairly be considered as included. What, then, is 
the true meaning of the words, " to estaMish post-offices 
and post-roads " ? The generally received meaning of 
the word " to establish " is, to settle firmly, to confirm, 
to fix, to found, to build lirmly, to erect permanently. 
Thus, treaties speak of establishing regulations of trade 
laws speak of establishing navy hospitals, where land is 
to be purchased, work to be done, and buildings to be 
erected ; of establishing trading houses with the Indians, 
where houses are to be erected ; congress is to establish 
uniform rules of naturalization, and uniform laws on the 
subject of bankruptcies. The constitution always uses 
the word " to establish" in its general sense; thus the 
constitution was ordained and estahlished by the people 
of the United States, for the purpose, among other things, 
of estahlishing j ustice : Congress is authorized to establish 
courts of interior jurisdiction. It is plain that the term 
is used in the sense of forming, creating and regulating 
that to which it is applied. Thus in establishing a uni- 
form rule of bankruptcies, and laws of naturalization, it 
is expected that congress will form, enact, make and 
construct laws on these subjects ; and as the judicial 
power of the United States is to be vested in one 
supreme court and such inferior courts as congress may 
from time to time estaMish, it is expected that congress 
will exercise this power in creating and organizing such 
courts. 

g 416. The only questions to be discussed are, had 
the people, as a sovereign and independent nation, 
authority to establish post-offices and post-roads V Had 
they the same absolute and unqualified sovereignty over 
all matters of internal administration, as other sovereign 
and independent nations? Had they, as a nation, 
authority to institute a general or national government, 
and to assign to its jurisdiction such subjects of general 
administration as they saw fit; and to confer upon the 
several departments thereof, authority to exercise all 
their powers as a nation, in administering upon those 
subjects? Did the nation, in the institution of the 
general government, provide for their own continual and 
potential presence in the administration of the same? 
Did the people, in the institution of the general govern- 
ment, provide for surrendering to any one, their author^ 



AUTHORS AND INVENTORS. 237 

ity ? or did they not rather provide for the means, and 
establish the manner in which they could administer 
their own authority ? Did the nation intend to deprive 
themselves of the power to administer fully in respect to 
every subject assigned to their general jurisdiction ; and 
thus tie the hands of the nation lest they should abuse 
their own authority ? Or did they not rather intend to 
provide for the full administration of all powers through 
the instrumentality of the general and state govern- 
ments, giving to each jdenary powers over every subject 
falling within its jurisdiction? The doctrine of derivative 
authority as applied to the American nation, is an inver- 
sion of the truth; and can result in nothing but constant 
error and antagonism. It is the Cyclopean monster of 
modern times: — the ^'monstrum horrendum, infonne, 
ingens, cui lumen ademptum.'''' 

% 417. Congress has power " to promote the progress 
of science and useful arts, by securing for limited times, 
to authors and inventors, the exclusive right to their 
respective writings and discoveries." ^ This power is 
confined to authors and inventors, and cannot bo 
extended to those who merely introduce a new improve- 
ment from abroad. This power is necessarily exclusive 
in congress, because the objects sought to be secured, 
cannot be obtained, if the several states are allowed to 
exercise authority upon the subject. The writings, inven- 
tions and discoveries belong naturally to the authors and 
inventors thereof, as being the products of their labor 
and skill ; and it is but just that they should be secured 
in the beneficial enjoyment of the commercial value of 
such labor for a limited period. 

§ 418. The authority of congress to constitute tribu- 
nals inferior to the supreme court, will more properly 
come under consideration in a subsequent chapter, when 
the subject of the national judiciary, as provided for 
by the first section of the third article of the constitu- 
tion is considered. The judicial power of the general 
government is vested by the constitution in one supreme 
court, and in such inferior courts as congress from time 
to time shall ordain and establish. This subject will be 
fully considered in its order. 

% 419. Congress also has power to define and punish 
piracies, and felonies committed on the high seas; and 
offenses against the law of nations.^ By this provision 

1 Constitution U. S., Art. 1, ? 8, cl. 8. 
a Art. 1, 1 8, cl. 10, Const. U. S. 



238 GOVERNMENT. 

of the constitution, the subject of defining and punish- 
ing piracies, is committed to congress, without any 
limitation. It has the entire power of the nation in 
that respect, inasmuch as it can declare by law, what 
shall coustitute piracy, and how the same shall be pun- 
ished. Under the confederacy the congress had the 
exclusive i)ower to appoint courts for the trial of pira- 
cies and felonies committed upon the high seas,^ but 
they were not expressly authorized to define what 
constituted piracy, or to declare what should be its 
jjunishment; although congress did denounce the jjun- 
ishment of death as the penalty for the common law 
oftense, known as piracy.^ But every nation has 
authority to define what shall constitute a crime against 
society, and how such crime shall be punished. Piracy 
is a crime against the universal law of nations, as well 
as against the law of any particular society or nation, 
for a pirate is deemed an enemy of the human race. At 
common law, piracy consisted in committing robbery 
on the high seas. By the act of May 15, 1820, congress 
provided that any person who shall be guilty of robbery 
in or upon any ship or vessel, or upon any of the ship's 
company of any ship or vessel, or the lading thereof, 
upon the high seas, or in any open roadstead, or in any 
haven or harbor, basin or bay, or in any river where the 
tide ebbs and flows, shall be guilty of piracy, and upon 
conviction be punished with death. It also provides 
that any persons engaged in a piratical cruise or enter- 
prise, or being of the crew or ship's company of any 
such enterprise, who shall land therefrom upon shore 
and commit robbery, shall be adjudged a pirate. It 
further provides that any citizen of the United States 
who shall, upon any foreign shore, decoy or seize 
negroes with intent to make them slaves, shall be 
deemed guilty of piracy.^ 

S 420. According to the law of nations, piracy is 
incurred by depredations upon the high seas, or near 
the sea, without authority from any prince or state. 
" It is piracy not only when a man robs without any 
commission at all, but when, having a commission, he 
despoils those whom he is not warranted to fight or 
meddle with ; such as are de ligeantia vel amicitia of that 

1 Art. Confed., Art. 9. 

2 Ordinance of April 5, 1781, 7 Jour. Congress, p. 76. 

3 See also Ing. Digest, pp. 155, 156, 170, 171 ; 11 Wheat. 39 ; United Slates v. Palmer, 
Sid. , 310, 326; also United States^, Klintock,b\6..,l^L\4S; Same v. I'urlona id.. 152. 
IM, 192; Same y.Hohnes, id., il2,il6. 



PIRACIES. 239 

prince or state which hatli given him his commission." ^ 
Thus, if a man having the commission of letters of 
reprisal against the Spaniards, commits, intentionally, 
depredations against the French or any other i)e()i)le, 
the guilt of piracy is incurred.^ But if these violations 
of property be perpetrated by any national anthoiity, 
they are the commencement of a public war; if with- 
out that sanction, they are piracy. Such were the 
sentiments and practice of antiquity, and the same 
distinctions are observed in modern Europe. Of this 
type or character were deemed the people of Algiers, 
Tunis, and the other maritime states of Africa. They 
have a fixed domain, public revenue, and form of gov- 
ernment, and are treated with as nations by the Euro- 
pean states. The Europeans, therefore, do not treat 
them as jjirates ; but sometimes carry on war, some- 
times treat for peace, with them as with other nations. 
For these reasons, when a Bristol merchant ship, in the 
reign of Charles II, was taken by the Algerines, and 
was afterward driven on the coast of Ireland, with some 
Turks and renegades on board. Sir Leoline Jenkins, 
judge of the admiralty, certified to the king that in his 
opinion, the native born Moors and Turks found on 
board were to have the privileges of enemies in open 
war, because the government of Algiers had been 
acknowledged by several treaties ; by the establishment 
of trade, and by the residence of consuls, by England 
and other states.^ 

g 421. By the law of nations, as understood in Eng- 
land and some other European countries, it is held that 
piracy cannot be committed by the subjects of states at 
enmity; — that the subjects of either state may seize 
and capture the enemy's ships and goods in time of 
open hostilities without the sanction of special commis- 
sion ; — that when there is a public demonstration of 
war, that may be taken not only to authorize but even 
to enjoin seizures of the enemy's vessels and goods ; — 
that the solemnity of a commission may be omitted as 
unnecessar}', as the intention of the supreme power is 
manifested as plainly by actions as it could be by words, 
provided such actions be unequivocal, and there be no 
doubts as to a subsisting war. * But Vattel is of a 
dift'erent opinion. He thinks that those who, without 

J Sir Leoline Jenkins, vol. 1, xciv; 2 Wooddeson's Law of Eng., 2 31, p. 422. 
» Woodcleson, supra. 

3 Letter lltli Feb., 1H79, 1680; 2 Sir L. Jenk., 791; 2 Wooddeson, i 34, p. 423, 424. 

4 See 2 Wooddeson, ? 34, p. 4;i2. . 



240 GOVERNMENT. 

commission even in a time of open war, commit 
violence or depredation on the adverse state, are to be 
treated as robbers and banditti. There are reasons why 
the doctrine as stated by Yattel should be maintained; 
otherwise the prey upon the commerce of the adverse 
state, may be carried on by the worst class of subjects, 
with, a piratical and felonious intention, demoraiiziug- 
those who engage in it, and ultimately converting them 
to pirates and felons. Although England does not 
denounce such uncommissioned acts as piracy, never- 
theless she does not encourage them. Prizes taken by 
such non-commissioned privateers, do not inure to their 
benefit, but go to the admiralty through the crown.^ 

§ 422. As pirates are reputed to be out of the protec- 
tion of all law and all privilege — as being enemies of 
the race, they may be tried in any country or jurisdic- 
tion where they are taken ; " eiim, qui sine legitimo 
^rincipis mandato hostile quid moliretur, punire posse a 
quocunque principe, in cujus potestatem fuisset redactusy 
Thus the captain of a French merchant ship having 
put into port in Ireland was accused by his crew of 
robberies on the seas. He fled, and his ship and goods 
were confiscated as having belonged to pirates. The 
French embassador presented memorials requiring the 
cause to be remanded to the appropriate judge, as 
he claimed, in France. But the king and his council 
adjudged that he was sufiiciently founded in point of 
jurisdiction to confiscate the ship and goods, and also 
to try the captain capitally had he been taken, the 
matter of renvoy being a thing quite disused among 
princes.^ Such are some of the general principles of 
the law of nations on the subject of piracies. But the 
particular law of each sovereignty may change or 
modify these general principles as applicable to their 
own citizens or subjects within their own particular 
jurisdiction ; and all the authority which any nation 
possesses on this subject is committed to the exercise of 
congress by the provisions of the constitution of the 
United States.^ 

g 423. If congress had not attempted to define what 
acts would constitute piracy, but had simply provided 
for the punishment of the same, the common law defi- 
nition of the crime would have been sufficient for 
determining what constituted it. The term piracy, as 

1 2 Wooddeson, ? 34, p. 432. 

2 2 Sir L. Jenkins, 714; 2 Wooddeson, supra. 3 Art. 1, § 8, cl. 10. 



FELONIES. 241 

the technical name of a crime, was well understood by 
those who framed and adopted the constitution ; and 
the definition of the crime would have been found in the 
term used. Thus, " the offense of piracy, by common 
law, consists in committing those acts of robbery and 
depredation upon the high seas, which, if committed 
upon land, would have amounted to felony there." ^ 
But it was deemed best to commit to congress the 
power to determine what other acts or depredations 
committed upon the high seas should be considered 
piracies, so that the nation, through congress, could 
exercise the sovereign authority of other nations upon 
that subject. 

g 424. But congress has power also to define and 
punish felonies, and offenses against the law of nations. 
At common law, that crime was deemed a felony whicl^ 
occasioned a total forfeiture of either lands or goods, or 
both ; and to which, capital or other punishment might 
be superadded, according to the degree of guilt.^ Capi- 
tal punishment does not necessarily enter into the 
definition of felony, although the idea of felony is so 
generally connected with that of capital punishment 
that it is difficult to separate them. Hence, where the 
English statute made a new offense felony, the law 
implied that it was to be punished with death, as well 
as with forfeiture, unless the ofiender was entitled, on 
prayer therefor, to benefit of clergy.^ But whatever 
may be the common law definition of a felony, or what- 
ever may be the punishment annexed to the offense, the 
whole subject is committed to the discretion of con- 
gi;ess, which can both define the crime, and afiix the 
I)enalty thereto. This provision of the constitution 
clearly commits to the jurisdiction of the general gov- 
ernment the subject of offenses committed on the high 
seas. The term high seas embraces not only the waters 
of the ocean at large, but also the waters along the 
coast below low-water mark ; and also the waters within 
the local jurisdictions of the several states lying along 
the coast between high and low-water mark, as well 
as below. The question of high and low-water mark as 
affecting the jurisdiction. of the general government, is 
applicable only to that part of the ocean which washes 
the shores of foreign countries.* 

1 2 East P. C, 796; 1 Russell on Crimes, p. 100 and notes; 1 Hawk. P. C, ch. 
37, §4; 4BI. Com., 72. 

2 4 Bl. Com., 95; see also 1 Hawk., ch. 25 ; 1 Russell on Crimes, 42. 

3 4 Bl. Com., 93 ; 1 Russell on Crimes, 42. 

•• Rawle on Const., ch. 9, p. 107; 1 Kent's Com,, 312; 6 Mason R., 290. 
31 



242 GOVERNMENT. 

.§ 425. Congress has power also to define and punish 
ofienses against the law of nations. Nations are inde- 
pendent sovereignties, having absolute jurisdiction in 
all matters over the individual members thereof; there- 
fore one nation cannot lawfully exercise its powers 
within the jurisdiction of another, to punish those who 
offend against it or its subjects. But justice, which is 
the basis of all society, and the sure bond of all inter- 
course between nations, requires that the rights of 
society, and of the individual members thereof, should 
be respected ; and that every one should be secure in 
the enjoyment of that which is his own, against the 
encroachments of the subjects of other jurisdictions, as 
well as against those of his fellow subjects. The obli- 
gation imposed upon all men to be just, has its basis in 
the law of nature ; and may be taken as true, without 
argument. All nations are therefore under obligations 
to cultivate justice toward each other, and carefully to 
abstain from anything which may violate it. From this 
obligation which nature im^joses on nations, as well as 
from the obligation which each nation owes to herself, 
results the authority of every state to defend her rights 
and the rights of each and all of her subjects ; for in 
opposing the infliction of wrong either upon herself or 
upon her subjects or citizens, she only act^ according 
to her imperative duty ; and therein consists her right. 
For it would be in vain for nature to prescribe to 
nations, as well as to individuals, the care of self- 
preservation, and of advancing their own perfection 
and happiness, unless she also gave them the right to 
preserve themselves from everything which might render 
this care ineffectual. Man has a natural right to every- 
thing which nature has made essential to his perfection, 
and necessary to the discharge of his duties.^ There- 
fore every nation, as well as every individual, has a 
right to prevent others from obstructing its own self- 
preservation, perfection and happiness; that is, every 
nation has a perfect right to protect itself from all 
injuries. From hence it follows, that private persons who 
are members of national societies, are under the same 
natural obligations to respect and observe the rights of 
other national societies, and of all the members thereof, 
which obligation is perfect and should be enforced. 
Therefore, whoever offends a state, injures its rights, 
disturbs its tranquillity, or does anything wrongfully to 

I See Vattel, pp. 154, 155, 160, being i^ 40, 30, 63, 64. . 



OFFENSES AGAINST NATIONS. 243 

its prejudice, exposes himself to just punishment ; and 
there should be no authority to interpose any barrier 
between such offense and the punishment it deserves. 
A nation should not permit one of its members to com- 
mit such a wrong upon a neighboring nation, or npon 
any of its members, with impunity. Its duty to itself, 
to its subjects, and to the family of nations, requires 
that it should provide by law for punishing all such 
offenders according to the nature of the oft'ense com- 
mitted. And a nation which neglects to keep its citizens 
or subjects within the rules of justice and peace, but 
suffers them to injure other nations, either in body or in 
its members, is guilty of a wrong for which she may 
justly be held responsible, as though the wrong were 
committed by herself. Therefore, it was proper and 
just that the i^ower to define and punish offenses 
against the law of nations should be conferred upon 
congress ; and that thus the duty of maintaining good 
neig-'hborliood with other nations should be imposed 
upon the general government. Under this grant, con- 
gress has all the authority of the nation npon that 
subject ; and can pass any laws necessary and proper 
to secure, on the part of citizens, fidelity to the rights 
of mankind. 

§ 426. This duty of nations in respect to each other, 
arises out of the obligations imposed by the law of 
necessity. If one nation permit its subjects to prey 
npon the subjects of a neighboring nation, then the 
subjects of the neighboring nation will be led to retali- 
ate by inflicting the like or worse injuries npon the sub- 
jects of the offending nation ; and in this way the friendly 
intercourse which nature has established between all 
men as a necessity and duty, would be interrupted ; and 
discord, strife and plunder would take its place. Where 
the offenders are arrested within the jurisdiction of the 
government whose subjects have been injured, they 
may be made to atone for their crimes; but if they have 
escaped again within the jurisdiction of their own 
nation, they can be reached only through their own gov- 
ernment. In such case the offended nation should 
apply to such government to have justice done in the 
premises ; and the government so applied to, is in duty 
bound to compel the transgressor to make reparation ; 
or to inflict upon him such punishment as the nature of 
his offense requires; or to deliver him into the hands 
of the offended authority to be dealt with according 



244 GOVERNMENT. 

to the laws of the country which he has offended. If 
the nation thus applied to refuse either to punish the 
offender, or to deliver him into the hands of the offended 
nation, she adopts and ratifies the offense, and it then 
becomes a matter of public concern ; and it may become 
a just cause of war between the two nations. It is the 
imperative duty of every nation to demand and require, 
by all its power, the doing of exact justice in such case, 
at whatever cost ; for it should be the settled law of 
nations that no public authority shall screen an offender 
from the punishment due to his crimes, without being 
held to answer for such an offense. 



OHAPTEE XIII. 

WAE POWEES OP THE GEifERAL GOYEENMENT. 

§ 427. CoNGEBSS shall have power to declare "war, 
grant letters of marque and reprisal, and make rules 
concerning captures on land and water; to raise and sup- 
port armies ; to provide and maintain a navy ; to make 
rules for the government and regulation of the land and 
naval forces ; to provide for calling forth the militia to 
execute the laws of the union ; to suppress insurrection 
and repel invasion ; to provide for organizing, arm- 
ing and disciplining the militia, and for governing such 
part of them as may be in the service of the IJnited 
States ; and to make all laws which shall be necessary 
and proper for carrying into execution the foregoing 
powers. By these provisions of the constitution con- 
gress is intrusted with the exercise of all the authority 
and powers in thi^ respect of the nation. The war 
powers necessarily embrace all the powers of the nation, 
over the persons and property of every citizen or sub- 
ject thereof; and congress can by law hold the citizens 
to the strictest obedience. So great is the exigency of 
a public war, that the body intrusted with the defense 
of the nation and the vindication of its rights, has 
unlimited discretion in the exercise of the war powers. 
A public war is that which takes place between nations 
or sovereigns, and is carried on in the name of the 
public power, and by its authority. Such wars are 
either offensive or defensive. That power which is fore- 
most in taking up arms, and attacking a nation which 
before lived in peace with it, wages an offensive war ; 



WAR POWERS. 245 

the one who takes up arms to repel the attack merely, 
carries on a defensive war. An offensive war is carried 
on to enforce some claim ; to vindicate some right ; to 
punish for some injury inflicted ; or to prevent some 
threatened danger. The authority to involve the nation 
in war must proceed from the sovereignty ; — from that 
authority which holds in its keeping, the lives, the lib- 
erty and the property of every member of the national 
family. Therefore, the right to declare war should be 
intrusted to that department of the government in which 
the nation is immediately and potentially present ; and 
can, by its presence, exercise that unlimited discretion 
so necessarj^ to be exercised in the midst of a great 
public war, involving the safety, and perhaps existence 
of the nation. In democratic or republican govern- 
ments, this sovereignty is in the people. The authority 
to declare war, and provide all necessary means for 
prosecuting it, should then be coniided to the law- 
making power; because in that department the nation 
is fally represented. For this reason the full power of 
the nation upon the subject of declaring and prose- 
cuting war, is by the constitution committed to congress, 
to be exercised by the nation itself, according to its own 
discretion, and for its own safety and welfare. 

§ 428. The authority to be exercised by congress in 
declaring war between the United States and any other 
power, is as unlimited as the authority of any sovereign 
or sovereignty; and, therefore, it can be exercised in 
the same manner, for the same causes, and subject to the 
same responsibilities, as when exercised by any sov- 
ereign or sovereignty. The American nation being 
sovereign in its national authority, has committed that 
authority to be exercised by the general government 
through congress, in which it is to be immediately pres- 
ent througi;i its chosen representatives, to exercise such 
powers as it deems necessary, both to declare war and 
to provide the means for conducting it to a successful 
issue. Congress, then, has the sole discretion to deter- 
mine for what causes war shall be declared. The moral 
right to make war belongs to the nation as the only 
remedy against injustice; and should never be exer- 
cised except in cases of imperative necessity. Says 
Vattel : ^ This remedy is so dreadful in its effects, so 
destructive to mankind, so grievous even to the party 
who has recourse to it, that unquestionably the law of 

I B. iii, ch. 4, g 51. 



246 GOVERNMENT. 

nature allows of it only in the last extremity ; — that is 
to say, when every other expedient proves ineffectual 
for the maintenance of justice. The declaration of war 
usually precedes, by a limited time, the commencement 
of actual hostilities. It is due to justice and humanity, 
that notice of a belligerent determination should be 
given, that the private subjects of each sovereignty 
may adjust their business relations and prepare for the 
condition of war which is about to be thrust upon them. 
The declaration of war being necessary to terminate 
the differences between nations without the effusion of 
blood by an appeal to the grave considerations incident 
to a state of war, it should, at the time of its announce- 
ment set forth the reasons which impel to such an 
alternative. And such is the present practice of all 
civilized nations. And if the offending party offers 
equitable conditions of peace, which are made avail 
able by proper security, then the right of making war 
would, by the law of nations, cease.^ 

g 429. The power to declare war may be exercised by 
authorizing general hostilities ; or by authorizing only 
partial hostilities. When, by an act of congress, war 
between the United States and a foreign power is 
declared to exist, then general hostilities are authorized ; 
as by the act of 1812,^ congress enacted, " that war be 
and hereby is declared to exist between the united king- 
dom of Great Britain and Ireland and the dependencies 
thereof, and the United States of America and their 
territories." But in 1798 there was a qualified but pub- 
lic war, carried on by the United States against France, 
upon the high seas only. It was qualified, because it 
was confined to the high seas ; but public, nevertheless, 
because the whole nation was engaged in it. It was 
founded on hostile measures authorized by congress 
against France, because of her unjust aggressions upon 
the commerce of the United States. It was carried on 
without any other declaration of war.^ 

g 430. As a war cannot be carried on without soldiers, 
it follows that the authority to declare and make war, 
involves the power of levying the necessary troops. 
This power is expressly provided for in the constitution, 
so as to leave no question as to the plenary authority of 
congress over the whole subject of declaring, making 

1 Vattel, D. iii, cli. 4, ? 54. 
s Ch. 102. 

3 See Rawle on Constitution, cli. 9, pp. 105, 106; 4 Dall., 37: Story's Com, on 
Const., § 1174. 



WAR POWERS. 247 

and carr3ing forward war. The authority to levy troops 
belongs to sovereignty, and cannot be intrusted to sub- 
ordinate authority. But the authority to levy troops 
places every citizen under the direction of congress, or 
of those to' whom congress shall intrust the exercise of 
this authority. Congress can say how many troops 
shall be raised ; for how long a time ; who shall be sub- 
ject to be drafted ; what shall be their compensation ; 
in what branch of the service they shall be placed ; 
where they shall serve ; by what regulations they shall 
be governed ; to what authority they shall be amena- 
ble ; — in short, in this respect the authority of congress 
over the persons of citizens is absolute to command, 
requiriug implicit obedience. In former times in the 
smaller states, immediately on the declaration of war, 
every man became a soldier; all took up arms and 
engaged in war. But in modern times, armies are com- 
posed of picked men, leaviug the remainder to pursue 
their usual avocations. In monarchical countries, stand- 
ing armies — regular troops — are relied upon as consti- 
tuting the necessary force.^ But in the United States, 
able-bodied male citizens between certain ages, consti- 
tute the class from which the great bulk of the national 
army is to be taken. But congress has unlimited author- 
ity to enlarge the class indefinitely, and cause it to 
embrace as large a proportion of the citizens as it 
deems proper. 

g 431. The power to declare and make war and to 
levy troops, also implies the power to command the 
means by which to arm, equip and sustain them in 
the service of the nation. This places at the disposal 
of the government so much of the property of the 
nation or of the members thereof as is deemed neces- 
sary for that purpose. Congress can provide those 
means by borrowing money on the credit of the Uni- 
ted States ; or by laying and collecting taxes, duties, 
imposts aud excises ; or it can create a currency on the 
credit of the nation, and provide for its solvency ; or 
for its circulation by making it to possess the authority 
of money in payment of debts, and the discharge of 
legal obligations. These powers are incident to that 
sovereignty which can declare and make war, and 
impose its authority upon the persons and property of 
the individual members of the nation. The authority 
that can create the emergency of war ;— that can put 

• Vattel, b. iii, ?§.7, 8, 9. 



248 GOVERNMENT. 

its hand upon the citizen and make him a soldier; — 
that can take him from the civil, and put him under 
martial jurisdiction ; — that can take his property by 
taxation, by duties, by imposts, and by excises, or 
by force if need be, and apply it to the use of the 
natiou, must, in such respect, be sovereign to command 
whatever is required by the exigencies of war. 

g 432. The authority of congress to issue treasury 
notes, and to make them a legal tender in payment of 
debts, for the purpose of supplying the means for carry- 
ing on war, has been gravely called in question. That 
all the war powers of a sovereign nation are committed 
to the discretion of congress, to be exercised as the 
exigencies of war shall require, is not debatable. The 
constitution has expressly provided that congress shall 
exercise all powers necessary and proper for carrying 
into execution the war powers of the nation ; and has 
thereby conferred upon congress the full discretion of 
sovereignty itself. What powers are necessary and 
proper, congress alone can decide. Ever^^thing involved 
in the issue of treasury notes, and in the authority to 
make them a legal tender, is committed to the discretion 
of congress. Under the exigencies of war, congress 
can take the private property of every citizen and 
appropriate it to the defense of the nation. It can levy 
its exactions, if need be, to the last dollar, and can 
legally require the levy to be paid. There is no species 
of property within the limits of the nation which it 
cannot reach. In the ^xercise of the sovereign author- 
ity of the nation, it can convert every citizen to a 
soldier, and compel him to be obedient to military 
authority. It can create, and it can discharge, legal 
obligations when necessary and proper to the execution 
of its powers. It can borrow money on the credit of 
the United States ; it can coin money by stamping the 
authority of the nation upon what substance it pleases, 
and can determine the value or price at which it shall 
be taken ; it can exercise all the authority of the nation, 
in this respect, for it is the nation itself exercising its 
own authority in the only way possible. The act of 
issuing the promises of the government, and requiring 
them to be received and treated as money by those 
whose persons and property are subject to the authority 
issuing tliem, seems to be no very great stretch of 
authority on the part of congress ; no very violent exer- 
cise of the discretion committed to it. In the midst of 



WAR POWERS. 249 

a war requiring the expenditure of $800,000,000 a year 
to save tlie life of the nation ; witli a gold and silver 
currency not adequate to one-fourth of such expendi- 
ture ; with no alternative left but to create a currency 
upon the credit of the nation adequate to the emer- 
gency ; it would seem to be trifling with the subject to 
deny to congress the authority to make that currency 
legally current, by requiring it to be received as i^ay- 
ment or in discharge of legal obligations. It was the 
nation's currency ; created and issued as a necessary 
and proper means to save the nation's life ; why, then, 
should it not be received by the nation upon its own 
credit, in discharge of its own obligations? 

§ 433. The United States as a nation is sovereign and 
independent ; and as such, has all the authority incident 
to such sovereignty. As a nation, she is liable to be 
involved in war with other nations ; and to be required 
to exercise all her authority and power in conducting 
such war to a successful issue. By the constitution, the 
people provide that the war powers of the nation shall 
be exercised by the general government alone; — that 
the several states shall have no authority to enter into 
any treaty or alliance, or to grant letters of marque or 
reprisal; — that they shall keep no troops or ships of 
war in time of peace; and shall not engage in war 
imless actually invaded, or in such imminent danger as 
to admit of no delay .^ Thus, the people of the United 
States have provided for the exercise of the war powers 
of the nation, only through the general government. 
But it will not be denied that the peojjle as a nation, 
contemplated the possible exigency of war; and, con- 
sequently, the liossible occasion for using all the powers 
of a sovereign nation in prosecuting the same. In 
assuming its position among the nations as free and 
independent, the United States, with a full knowledge 
of what was essential to maintain and defend nation- 
ality, instituted the general government as the sole and 
only means of asserting its authority and maintaining 
its rights, under all circumstances. They, therefore, 
provided for themselves a general government, as a 
means by which the public authority could be exercised 
over those subjects which were enumerated in the con- 
stitution ; and as the nation was to administer the 
government, no other restriction or definition was neces- 
sary than that which pointed out clearly the subjects of 

1 Art. 1, ? 10, Const. U. S. 

32 



250 GOVERNMENT. 

national jurisdiction, that the officers of the national 
and state governments might not interfere in their 
respective administrations. 

g 434. Inasmuch as the general government is invested 
with all the powers of the nation to declare war and 
make peace; to raise and equip armies, and support 
them iu the field ; to provide and maintain a navy ; and 
to make all laws necessary or proper for carrying into 
execution these powers, the extent of the war powers 
of the general government can be ascertained by an 
inquiry into the sovereign authority of the nation in 
such respect ; and, as the American nation has the same 
authority as other independent nations, the inquiry 
becomes simple and easy to be answered. Congress' 
has authoritj^ to declare war for any of the causes 
known to the law of nations. Thus, a nation may be 
attacked with a view to obtain that which is due, but is 
unjustly withheld ; or to punish her for some injury com- 
mitted to another nation or its subjects ; or to avert 
threatened dangers. The sovereignty, or those intrusted 
with its exercise in any country, are the sole judges of 
what are sufficient causes for war. War being declared, 
all powers essential to its vigorous prosecution and suc- 
cessful termination can legitimately be exercised ; and 
when the authority of the nation is vindicated, the 
power to bring the war to a close by treaty stipulations 
is as plenary as it was to declare and carry it on. 

g 435. According to the peculiar doctrines of the strict 
constructionists, serious questions have been raised 
whether the nation had authority to acquire territory 
from a foreign power.' The authority of sovereignty to 
acquire and dispose of territory admits of no question. 
There can be no such authority in any one which does 
not come from the sovereignty. But the question was, 
whether the nation had authorized the general govern- 
ment to acquire such territory. Soon after the American 
nation had organized a government, this question was 
thrust upon them. Spain had ceded Florida and Louisi- 
ana to France ; and France proposed to take possession 
of the same. Thomas Jefferson was then President of 
the United States. Mr. Livingston was the American 
minister in France. On the 18th of April, 1802, Mr. 
Jefferson wrote Mr. Livingston upon the subject. 
He informed him that this proceeding on the part of 
France had reversed all political relations of the United 
States, and had formed a new epoch in her political 



WAR POWERS. 251 

course; — that of all nations, Franct. iiitberto had oifered 
the fewest points on which any conflict of right could 
arise, and the most points for communion of interest; — 
that for these causes, France had been considered the 
natural friend of the United States; — but that there 
was one point on the globe — one single spot — the i)os- 
sessor of which was the natural and habitual enemy of 
the United States; and that imint luas Neiv Orleans, 
through which the products of three-eighths of the ter- 
ritory of the American Union must pass to market; and 
which, from its fertility, would soon yield full one-half of 
the products, and contain one-half of the population, 
of the United States; — that France, placing herself in 
the door, assumed an attitude of defiance; — that the 
impetuosity of the French temper, the energy and rest- 
lessness of the French character, would there be placed 
in a point of eternal friction with the United States ; — 
that, in short, the day that France should attempt to 
take possession of New Orleans, would fix the sentence 
which would restrain her forever within her low-water 
mark; — that the position of the United States would 
permit no foreign power to occupy that outlet to the 
Gulf of Mexico ;-— that persistence on the part of 
France, would be a cause, and an occasion, of war 
between the two nations. Here was a singular dilemma. 
According to the doctrine of Mr. Jefferson himself, 
the United States had no constitutional authority to 
acquire territory, because the states had not expressly 
delegated it to them. Yet here was territory which the 
existence and safety of the nation would not permit 
any other nation to occupy ; and, if necessary, the 
United States would take possession of it by force, and 
hold it at the risk and expense of a war with its old 
friend and ally. Yet, according to Mr. Jefferson's 
doctrine, had France offered to cede the whole Louisi- 
ana country to the United States for the expense of 
fixing its bounda^ries, they had no authority to accept 
of it, even though they might be compelled to go to 
war to acquire it. But notwithstanding the constitu- 
tional scruples of Mr. Jefferson and his class of strict 
constructionists, negotiations took place by which the 
Louisiana territory was ceded to the United States, and 
the supposed unauthorized act of the government was 
made legal and constitutional by the higher laws of 
necessity and acquiescence. This exigency should have 
taught the true doctrine of the sovereign powers of the 



252 GOVERNMENT. 

nation over all subjects of general jurisdiction, as 
administered by themselves through the instrumentality 
of the general government. 

g 436. The advocates for derivative sovereignty in the 
nation, and original sovereignty in the states, have ques- 
tioned the authority of the nation to move the national 
forces through the states, without the consent of the 
government of the particular state through which they 
are required to pass. It is a singular position that the 
general government is required to protect every part of 
the national domain from invasion, and is authorized 
and required to raise and provision armies; or to call 
the militia into service for such purpose, and yet it has 
no authority to enter upon the territory invaded or 
threatened, without the consent of the local government. 
At the time of the inauguration of the great rebellion 
in 1861, certain of the border states were much con- 
cerned for the inviolability of state sovereignty ; and 
remonstrated against the passing of the national armies 
through their borders on their way to the field to put 
down the rebellion. Kentucky not only had no sol- 
diers for the defense of the nation, but she proposed to 
become neutral ground between the nation and her 
rebellious citizens ; and to exclude the armies of both 
parties from her territory. The advocates of original and 
inherent sovereignty in the states, overlooked the fact 
that the authority of the nation extends over every inch 
of the national domain ; and for the purpose of national 
security, and welfare, is supreme over all ; that Ken- 
tucky, as a 1 ocal government, exists only by che incor- 
poraling and enfranchising act of the nation ; that 
every national citizen, for national purposes, has as 
mucii authority within the territorial limits of Ken- 
tucky, as those born therein. The exigencies of civil 
war soon revealed the essential fallacy of the doctrine of 
inherent sovereignty in the states ; and settled the ques- 
tion of national authority to occupy any territory 
within the several states, required for the purpose of 
securing obedience to the laws of the nation. 

g 437. There are those who claim large war powers 
for the president, because he is made, by the constitution 
of the United States, ex officio commander-in-chief of 
the army and navy — that is, the supreme command of the 
army and navy is vested in the president. The duties 
and powers of the president as the executive head of 
the nation, and the duties and powers incident to his 



WAR POWERS. 253 

command of the army and navy, are distinct and dis- 
similar. As the executive bead of the nation, cliarged 
witli tlie execution of the laws thereof, his duties are 
prescribed by law, and are of a civil character. In 
the exercise of those powers he acts according 
to the direction of, and in obedience to civil author- 
ity. If resisted in the performance of his executive 
duties, he can call to his aid such assistance as the law 
authorizes ; and in the manner in which he is author- 
ized by law to do so. Beyond this he cannot go. 
Whenever the resistance becomes such as to call for the 
intervention of the army of the United States, and it 
is leg'ally employed to put down resistance to the law, 
then the president's authority as a military commander 
begins, and may continue like the authority of any 
other supreme commander of the army of a nation. 
But the powers of the president as a civil officer, and his 
powers as a military officer are very distinct. As a civil 
officer the president has no x>ower not conferred and 
regulated by the laws of the United States. In the 
discharge of his executive duties merely, he is as strictly 
accountable to the law as the humblest officer. He has 
no authority to interpose the military power of the nation 
in the execution of his civil duties except as provided 
by law. Therefore it is clear, that as a civil officer he 
has no war powers ; nor has he any authority to involve 
the nation in war that he may exercise war powers. It 
will be time enough for the president to commence the 
exercise of war powers, after the exigencies of war shall 
make it necessary. 

S 438. As the executive head of the nation, it is made 
his especial duty to see that the laws of the nation 
are properly enforced; and congress not unfrequently 
provide especially for the manner in which certain 
requirements shall be enforced ; and by such xn'ovisions 
give to the president large powers to be exercised under 
a large discretion. The statute books of the United 
States are full of examples of this character ; and the 
president, in executing these laws, at times seems to be 
possessed of unlimited authority. But careful attention 
to the subject will show that he is acting in obedience to 
the particular authority conferred upon his office by the 
law-making power. It cannot be too strongly impressed 
upon the public mind, that the President of the United 
States is a mere officer of the law, intrusted with the 
exercise of certain duties and powers attached to 



254 GOVERNMENT. 

the ojfice, and not to the incumbent ; that as a civil offi- 
cer he has no authority except that which is prescribed 
by law. As a military officer his duties are as strictly 
confined to military operations, conducted according to 
principles of martial law, enlarged and restricted accord- 
ing to the exigencies of the situation, the same as other 
military officers in supreme command. 

g 439. The duties and powers, of the President of the 
United States, as the commander-in-chief of the army 
and navy, do not extend beyond the well established 
rules or "laws necessarily peculiar to the organization, 
discipline and command of military bodies ; except so 
far as by the laws of the United States, other duties 
may have been imposed, or other powers may have been 
conferred upon that office. As commander-in-chief, the 
president has no occasion to exercise martial authority 
except in connection with the operations of the army. 
That which pertains to the country at large, and which 
is not connected with the immediate presence of the 
army, or with that which has to do with the organization, 
discipline or efficiency of the army, does not properly 
come within the scope of the president's powers as its 
commander-in-chief. There have been grave questions 
as to the authority of the president as commander-in- 
chief, to proclaim martial law ; to suspend for the time 
being the functions or powers of civil government over 
any particular territory. The principle by which these 
questions are to be answered would seem to be plain, 
affording an easy solution of the problem. The reason 
for the authority given to military commanders in the 
exigencies that may be upon them, is found in the 
necessity of the case. In the presence of an enemy 
which is threatening not only the destruction of the 
army, but likewise the destruction of the government, 
which has intrusted its defense to the keeping of the 
army, the commander may find it necessary to disregard 
civil processes and civil authority altogether. The very 
continuance of civil authority in the future may require 
for the time being, that it be suspended in the present. 
Under such circumstances, it would be the duty of the 
commander-in-chief to disregard, if need be, all civil 
authority until the emergency had passed, and both the 
army and government were safe from impending danger. 
This military power is accorded to the military com- 
mander, because the civil authorities have neither the 
time nor ability to act in the premises. Aside from these 



WAR POWERS. 255 

military reasons based upon the necessity of the case, 
the commander-in-chief has no rightful authority to dis- 
regard the civil authority. If there are general reasons 
affecting the whole country why martial law should be 
proclaimed and the i)owers of civil government should 
be suspended for the time being ; reasons applicable as 
well to places not connected with the army as to those 
in its immediate presence, it furnishes no occasion for 
the exercise of the exigency powers of the commander- 
in-chief. Where there is time for the people to act 
through the legislative department of the government 
without danger to the commonwealth incident to the 
delay necessary, it is more in accordance with the prin- 
ciples of republicanism, that civil authority should be 
suspended by the action of the legislature than by the 
authority of the commander-in-chief. It is only in 
respect to the presence of war with its impending dan- 
gers that the maxim, et silent inter leges anna, applies. 

% 440. It has been asserted that because the constitu- 
tion declares the president to be the commander-in-chief 
of the army and navy of the United States — that is, 
because the army and navy are subject to him as their 
constitutional commander, therefore he is invested with 
the war-making power, and can wield the army and 
navy as he pleases, until resistance to the authority of 
the pation ceases; that he can be restrained only by the 
X^ower of congress, to be exercised in refusing to appro- 
priate the means to pay the expenses, or to provide 
for his levying troops. ^ This view is based upon the 
hypothesis, that the president, being ex officio com- 
mander-in-chief, possesses authority that a commander- 
in-chief would not have were he not also President of 
the United States. But examination and reflection will 
show that the authority of commander-in-chief of the 
army and navy of the United States is not at all aug- 
mented by the fact, that civilly the same i)erson is also 
president of the nation, and has civil and presidential 
duties to i)erform in other departments of administra- 
tion. His duties and powers as commander-in-chief are 
the same they would be were he otherwise nothing but 
a common citizen. So that the question of the powers 
of the president as ex officio at the head of the army 
and navy, is to be determined by the simple definition 
of the powers pertaining to the office of commander-in- 
chief. Suppose, then, that the lieutenant-general could 

i Congressional Globe 1S61-2, March 4, 1862, 



256 GOVERNMENT. 

become the captain-general or commander-in-chief, 
instead of the presidential incumbent, could it be said 
of him, that he was invested with the war-making 
power ? that he could direct and control the army and 
navy of the United States as he pleased ? that he was 
not subject to the direction or control of congress ? that 
the only power they could exercise over him would be in 
withholding supplies, or making no provisions for levy- 
ing troops? The people of the United States have 
invested no commander-in-chief with such powers, to 
override their will as expressed through congress, in the 
laws by them enacted. The President of the United 
States, as commander-in-chief Of the army and navy, is 
as limited in his authority as would be any other com- 
mander-in-chief ; he is as much subject to legislative 
direction and control, as any other person occupying 
that j)Osition would be. It is to be remembered that 
the powers and duties pertain to the office of commander- 
in-chief ; not to the person holding the office ; not to 
any other office he may possess ; or to any other duties 
and powers incident to such other office. The authority 
of the president to proclaim martial law, or to suspend 
the writ of habeas corj^us, or any other civil process, 
depends upon the same exigencies as would authorize 
any other person holding the office of commander-in- 
chief to do so. For be it remembered that when the 
president assumes the authority to proclaim martial, and 
suspend civil law, he acts in virtue of the authority of 
his military, and not of his civil office. Therefore, the 
power of the president to suspend the writ of lidbeas 
corpus would be justified, when, and to the extent, that 
the exigency duties . of his military office require that it 
should be suspended. To attempt to go beyond this 
necessity as a military commander, is to usurp power; 
and, consequently, to act without authority. 

S 441. The power to proclaim martial law is one of 
the war powers, and is to be resorted to only when the 
safety and welfare of the public require it. The 
language of the constitution is, " the privilege of 
the writ of habeas corpus shall not be suspended unless, 
when in case of rebellion or invasion, the public saftey 
may require it." This supposes the presence of a force 
which can be resisted only by military power. It sup- 
poses a danger, to the removal of which civil authority 
is not adequate ; and, therefore, it should not be permit- 
ted to defeat the end of government by the assertion of 



WAR POWERS. 257 

authority it could not execute. Now this danger may 
be present, and yet be of such a character, that con- 
gress can both ascertain the fact of its existence, and 
provide for the remedy by its ordinary course of legisla- 
tion. It may be a danger that pervades the entire 
country, both in the presence and in the absence of the 
military arm of the government. The very danger may 
be iu the disloyalty of those intrusted with the adminis- 
tration of civil authority. The courts armed with 
judicial jjowers, may be composed of persons unfriendly 
to the government : and this condition of things may 
pervade a large extent of country, so that the authority 
which should aid iu the enforcement of civil law, may 
be used to overthrow the government. In cases of this 
character, the authority to suspend the writ of habeas 
corpus, would be more properly exercised by congress, 
as expressing the will of the nation, looking to its pros- 
pective dangers, and the means of providing against 
them. But where the danger is local, is in the presence 
of the army, and threatens to interfere with its efhc- 
iency; where it is immediate and cannot be averted 
except by prompt and decisive action ; when there is no 
time to consult the legislature, iu short, where from the 
necessity of the case, it must be left to the discretion of 
the commander, then he not only has the authority, but 
it is his duty, if need be, to suspend the writ of habeas 
corpus, and all other civil jjrocesses, that the military 
power may be used to save the army and government 
from defeat and overthrow. 

% 442. Mr. Sumner of Massachusetts, in the United 
States Senate held the true doctrine. Said he, " there 
are senators who claim these vast war powers for the 
l)resident and deny them to congress. The president, it 
is said, ascommauder-in-chief, may seize, confiscate, and 
liberate, under the rights of war ; but congress cannot 
direct these things to be done. Where is the limitation 
upon congress? Read the text of the constitution, and 
you will lind its powers as vast as all the requirements 
of war. There is nothing which may be done anywhere 
under the rights of war which may not be done by con- 
gress. I do not mean to question the i)Owers of the 
president in his sphere, or of any military commander in 
his department. But I claim for congress all that belongs 
to any government, in the exercise of the rights of war ; 
I mean for an act of congress passed according to the 
requirements of the constitution, by both houses, and 

83 



258 GOVERNMENT. 

approved by the president. The government of the 
United States appears most completely in an act of 
congress. Therefore war is declared, armies are raised, 
rules concerning captures are made, and all articles of 
war regulating the conduct of war are established by 
act of congress. It is by the act of congress that the war 
powers are at all put in motion ; when once put in motion, 
the president must execute them. But he is only the 
instrument of congress under the constitution. It is 
true the president is commander-in-chief : but it is for 
congress to make all laws necessary and proper for car- 
rying into execution his powers, so that according to 
the very words of the constitution, his powers depend 
upon congress which may limit or enlarge them at 
pleasure." ^ 

g 443. During the discussions respecting the war 
powers of the president and of congress, some spoke 
of the constitution as being suspended ; that is, of its 
authority as being in abeyance during the continuance 
of the war, and the maintenance of martial authority 
over certain sections of the country. This language 
tended to beget erroneous ideas respecting the authority 
of the constitution. The constitution is as really the 
supreme law of the nation during the prevalence of 
war, as in the time of peace. It is in itself an ordi- 
nance of government ; that is, an ordinance instituting 
a government for the nation in times of war as well as 
in times of peace. It contemplates war and peace. It 
provides for the exercise of war powers in times of war, 
as fully as for the exercise of peace powers in times of 
peace. It is as explicit in defining the duties and 
powers of the government to be exercised and adminis- 
tered at the one time as at the other. Congress is 
acting as constitutionally in declaring war, and in 
making all necessary provisions for carrying it on, as 
when it is laying and collecting taxes, coining money, 
or establishing post-offices and i)ost-roads, or exercising 
any other of the peace powers of the constitution. The 
president, in exercising the duties and powers of com- 
mander-in-chief, at the head of the army and navy, is 
as really a constitutional officer of the government, 
engaged in the discharge of his constitutional duties, 
and in the exercise of his constitutional powers, as when 
he is sending his message to congress, approving of the 
laws passed by it, or discharging any other civil duty 

1 In U. S. Senate, June 27, 1862. 



WAR POWERS. 259 

imposed upon liim. The constitution contemplates the 
possible existence of war with all its stern realities; and 
provides for an administration of authority under its 
provisions suited to such exigencies. In times of peace, 
congress is expected to exercise only the peace powers ; 
except, ijerhaps, so far as it may be necessary to provide 
against the accident of war, by making ready for it 
whenever it may come. In times of peace, the presi- 
dent is the simple executive and presidential head of 
the nation ; having little occasion to exercise his military 
powers as commander-in-chief. In times of peace, the 
citizen is to be secure in the enjoyment of his civil 
liberty and rights, according to the established forms 
and usages of law. But the constitution contemplates 
the possibility of a state of public danger arising 
from the presence of a foreign or domestic foe, which 
may render it expedient to suspend the writ of habeas 
corpus, and hold in custody those who are deemed to be 
dangerous to the public peace and security, without the 
presence of an authority to inquire into the legality of 
their detention. It contemplates the necessary suspen- 
sion, for the time being and in particular localities, of 
the civil functions of the government, that the martial 
jjowers of the same may be efficiently exercised, for the 
security and welfare of the nation. But that the martial 
powers may be exercised, when, in the judgment of the 
proper authorities it becomes necessary for the safety 
of the nation, is as really in accordance with the pro- 
visions of the constitution, as is the exercise of the civil 
powers in times of peace. But the proper authority to 
determine when and where any portion of the nation 
shall be under martial rule, is to be found in congress, 
in which the nation itself is ever present to exercise its 
judgment and declare the law. It is proper, however, 
that the commander of the army should suspend the 
operations of the civil, by substituting the martial, 
powers of the constitution whenever, for the time being, 
the safety of the army and of the state requires that the 
operations of the army should not be interfered with by 
the obtrusion of civil process. These occasions may 
be denominated the exigencies of war ; and the powers 
thus exercised, " ilie exigencij jmwers.'' 

g 444. The power of the president to suspend the writ 
of habeas corpus was called in question by Chief Justice 
Taney, during the progress of the civil war in the 
United States. Orders had been issued by the presi- 



260 GOVERNMENT. 

dent to military commanders in various sections of tlie 
country to suspend, if necessary, tlie writ of luibeas 
corpus within the limits of their respective commands. 
The military commander of the district of Pennsylvania 
and Maryland had caused to be arrested, as dangerous 
to the peace and security of the nation, one Merryman. 
A writ of habeas corpus was issued to bring him before the 
chief justice. The officer refused to obey the writ. In 
concluding bis remarks upon the subject. Chief Justice 
Taney says : " The documents before me show that the 
military authority in this case bas gone far beyond the 
suspension of the privilege of the writ of luibeas corpus. 
It has, by force of arms, thrust aside the judicial author- 
ities and officers to whom the constitution has confided 
the power and duty of interpreting and administer- 
ing the laws, substituted military government in its place, 
to be administered and executed by military officers. 
There was no danger of any obstruction or resistance to 
the action of the civil authorities, and therefore no reason 
whatever for the interposition of the military. And 
yet, under these circumstances, a military officer sta- 
tioned in Pennsylvania, without giving any information 
to the district attorney, and without any application to . 
the judicial authorities, assumes to himself the judicial 
power in the district of Maryland, undertakes to decide 
what constitutes the crime of treason or rebellion, what 
evidence is sufficient to support the accusation and jus- 
tify the commitment ; and commits the party without 
even a bearing before himself, to close custody in a 
strongly garrisoned fort, to be there held, it would seem 
during the pleasure of those who committed him. I 
have exercised all the power, which the constitution and 
laws confer on me, but that power has been resisted by a 
force too strong for me to overcome. It is possible that 
the officer, who has incurred this grave responsibility, 
may have misunderstood his instructions, and exceeded 
the authority intended to be given him. I shall there- 
fore order all the proceedings in this case, with my 
opinion, to be filed and recorded in the circuit court of 
the United States for the district of Maryland, and 
direct the clerk to transmit a copy under seal, to the 
President of the United States. It will then remain for 
that high officer, in fulfillment of his constitutional obli- 
gation, to take care that the laws be faithfully executed, 
to determine what measures he will take to cause the 
civil process of the United States to be respected and 



WAR POWERS. 263 

enforced." ^ The late chief justice overlooked the fact, 
that this order of the president was issued to these 
military commanders at the time when civil war had 
been inaugurated, pervading the territory where this 
arrest was made, and involving the existence of a civil 
government loyal to the nation; when the rebel hosts 
were marching upon the capital of the nation to capture 
it, and to overthrow the government; and when, in 
obedience to the call of the president, the loyal forces 
marching to its defense, in passing through the city 
of Baltimore, were met by the citizens of Maryland, 
attacked in the streets, their progress obstructed, and 
their blood shed ; when the civil authorities of Maryland 
either could not or would not interpose to prevent such 
interruption ; when for days after, the loyal men of the 
north and east were not permitted to pass through 
the city on their way to defend the national capital 
from the insurgent army; and the only direct route to 
Washington through Maryland remained closed to the 
transportation of troops loyal to the government, until 
it was opened by the martial authority of the nation. 
The chief justice overlooked the fact that Maryland, as 
a state was saved from going bodily into secession by 
the arrest of the members of its legislature ; — that had 
it not been for the loyalty of her governor, Maryland 
would have early placed herself, in company with the 
gulf states, in open rebellion against the authority of 
tlie nation; — that treason was x^opular in Maryland, 
and loyalty was contemned and despised; — that the 
civil authorities of Maryland were plotting with rebels, 
and with the rebel authorities south, to take the state 
out of the union. In rebel parlance, she was called 
" my Maryland." The exigencies of war were upon the 
nation at the time the president issued his order to 
the military commanders to proclaim martial law, if 
deemed necessary, in their several departments. The 
time of danger contemplated by the constitution, when 
the civil should yield to the martial administration of 
authority^ was in the midst of the nation ; and nothing 
but the lirm, loyal, prompt and effectual action of the 
president as commander-in-chief, saved the nation from 
utter overthrow. The authority given by the constitu- 
tion to suspend the privileges of the writ of habeas 
corpus, was designed to be exercised on just such occa- 
sions as those which called for the military order of the 

1 Law Reporter, June, 1861. 



262 GOVERNMENT. 

president ; and its exercise was as constitutional as 
the exercise of civil authority in times of peace. The 
thrusting aside of the judicial and civil authorities of 
Maryland, in the emergency then upon the nation, was 
a constitutional act, exercised in the sound discretion of 
the officer in whom, by the constitution, the authority 
was reposed. 

g 445. Upon principle, it would seem that the com- 
mander of a military district would be justified in the 
interruption of the course of civil administration only 
in cases of necessity; and then only to the extent neces- 
sary. If the emergency be such only as that the course 
of civil administration is adequate to its demands, there 
is no reason for the interference of military authority. 
But if the danger be so pressing that it will not admit 
of the delay incident to civil proceedings ; or if the civil 
authorities are disloyal, and will aid the enemies of the 
government rather than the government, then the com- 
mander-in-chief will be justified in resorting to the 
martial powers of the nation. Thus, at ISTew Orleans, 
when the civil authorities attempted to obtrude civil 
process to the embarrassment of military operations in 
the face of the public enemy, the proclamation of mar- 
tial law by General Jacksois:, for the time being, had 
its justification in the necessity of the case. Martial 
law and success, or civil rule and ruin, seemed to be the 
alternatives. " When martial law is proclaimed under 
circumstances of assumed necessity, the proclamation 
must be regarded as the statement of existing facts, and 
not as the creation of the facts ; as in a beleaguered 
city, the state of siege lawfully exists because the city 
is beleaguered ; and the proclamation of martial law in 
such case is only notice and authentication of the fact, 
that civil authority has been suspended of itself by 
force of circumstances, and that by the same force of 
circumstances the military power has devolved upon 
it." ^ In the states of continental Europe, the etat de 
siege, which corresponds with the suspension of the 
habeas corpus, or with martial law, is regulated by per- 
manent law. In France it is defined to be " a measure 
of public security, which temporarily suspends the 
empire of the ordinary laws in one or more cities in a 
province, or in an entire country; and then considers 
them subject to the laws of war." ^ So by the constitu- 

5 Opinions of Attorneys General, vol. 8, p. 373. 
s Bouillet Dictionaire des Sciences, &c., p. 622. 



WAR POWERS. 263 

tion of the 14th of January, 1852, as modified by the 
senatiis consiiUus, reestablishing the imperial dignity, 
" the emperor has the right to declare a state of siege — 
etat de siege — in one or "more departments, subject to a 
reference to the senate with the least possible delay." ^ 
It provides that the state of siege can only be declared 
in cases of imminent i)enl, for the internal or external 
security ; and that the national assembly can alone 
declare it, except that the president of the republic 
may declare it during the prorogation of the assembly, 
subject, in grave cases, to immediately convening the 
assemblj^ ^ 

§ 446. The power to declare war would of itself have 
carried with it, by necessary implication, all the other 
powers necessary and proper for carrying it on, without 
the particular enumeration of subjects which immedi- 
ately follows this clause. Especially is this the case 
when it is considered, that the enumerations of the 
eighth section are rather enumerations of subjects than 
of particular powers. The subject of war with foreign 
powers is, by the constitution, committed to the juris- 
diction of the general government ; and, consequently, 
all powers necessarily connected therewith. But to 
place beyond question the authority of the general gov- 
ernment over the whole subject, the further enumera- 
tion of subjects was made. The power to grant letters 
of marque and reprisal, although incident to the power 
to declare and make war may, nevertheless, be exercised 
as a measure of peace, to prevent the necessity of 
resorting to war. The law of nations authorizes the 
sovereign or government whose subject has been injured 
by the depredations of a foreign potentate or state, or 
the subjects thereof, to grant to the injured party this 
mode of redress, where justice has been denied him by 
the state to which the party doing the injury belongs. 
Letters of marque signify the passing, or the authority 
to pass, the boundaries of the offending state, in order to 
make reprisal by seizing the persons or goods of the 
subjects of such offending state, wherever they may be 
found, until satisfaction for the injury is made. This 
right is granted, because the delay of making war may 
sometimes be detrimental to individuals who have suf- 
fered by such depredations ; and this method is resorted 
to to enable them to obtain speedy justice.^ The prin- 

1 Tripier, Code Politique, p. 389. 

s Tripiev, supra ; see Lawrence, Wheat., p. 521 and notes. 

3 See 1 Bl. Com., 25S-2GU. 



264 GOVERNMENT. 

ciple involved is that of authorizing the injured party 
to take the remedy into his own hands., and that the 
government will be responsible for the consequences. 

g 447. The whole subject of exercising war power is 
committed to the exclusive jurisdiction of congress. 
Thus, it is authorized to make rules concerning captures 
on land and water, committing the admiralty jurisdic- 
tion of the nation to the general government exclusively. 
The power to raise and support armies is unlimited, 
except as to the duration of the appropriations. That 
is, the house of representatives is renewed every two 
years, by members fresh from the people, and newly 
instructed in their wishes, therefore they are not to 
be bound by appropriations made for the support of 
the army for a period longer than the official term of the 
members making the appropriations. Thus, if one con- 
gress had unnecessarily increased the army, and had 
made provision for its support and maintenance, the 
next congress can continue the appropriations, or not, 
as they think proper. By this means the unlimited 
power to raise and support armies is sufficiently within 
the control of the people ; and their maintenance 
depends upon new appropriations to be made every two 
years. Congress is also to provide and maintain a navy ; 
that is, the subject of jjroviding and continuing a 
sufficient naval force for national exigencies belongs 
exclusively to congress, and its authority over the whole 
subject is as unlimited as sovereignty can grant. Con- 
gress has the power of prescribing the rules by which 
the land and naval forces are to be governed ; and also 
to make such provisions as they please for calling forth 
the militia for any purpose for which the military may 
become necessary ; that is, either to execute the laws, 
to suppress rebellion, or to repel invasion. It is also 
authorized to provide for organizing, arming and disci- 
plining the militia; and also for governing such portion 
of them as are employed in the service of the United 
States. 

g 448. Congress shall have power to exercise exclusive 
legislation in all cases whatsoever over such district — 
not exceeding ten miles square — as may, by cession of 
particular states and the acceptance of congress, become 
the seat of government of the United States ; and shall 
have power to exercise like authority over all places 
purchased by the consent of the legislature of the state 
in which the same shall be, for the erection of forts 



WAR POWERS. 265 

magazines, arsenals, dock-yards, and other needful 
buildings ; and shall have power to make all laws which 
shall be necessary and proxjer for carrying into execu- 
tion the foregoing powers. By the operations of this 
clause, congress becomes the legislature of the District 
of Columbia, for all purposes of internal police admin- 
istration, and the authority of the general and state 
government are united in the general government. This 
was deemed necessary to avoid conflicts which might 
arise between the local authorities of any state, and the 
authorities of the nation. In the exercise of the powers 
requisite for the protection of local and domestic inter- 
ests, and for the administration of law to local and 
domestic relations, congress has hitherto found it 
impracticable to enter into the details of such legisla- 
tion ; and has generally supplied this local necessity by 
adopting the local laws of the state from which the par- 
ticular territory was taken, as the law of such territory, 
by reenacting it for such territory. In doing this it 
has made such alterations or modihcations of the state 
laws as it thought proper, and then i)rovided for the 
administration thereof by national authority. 

g 449. Congress shall have power to make all laws 
which shall be necessary and proper for carrying into 
execution the foregoing powers — meaning the powers 
pertaining to the subjects enumerated in the eighth 
section — and all other powers vested by this constitution 
in the government of the United States, or in any 
department thereof. By the provisions of this clause, 
congress is vested with sovereign legislative authority 
over the enumerated subjects, committed by the consti- 
tution, to the jurisdiction of the general government, or 
to any department thereof; so that whatever legislation 
may be necessary to the exercise of plenary authority 
over any enumerated subject committed to the jurisdic- 
tion of the general government, congress has the express 
authority of the constitution to supply. Thus, congress 
shall have power to regulate commerce with foreign 
nations, &c., and to make all laws which shall be neces- 
sary and proper for carrying into execution such 
power. Congress shall have power to provide and 
maintain a navy; and to make all laws which shall be 
necessary and proper for carrying into execution such 
power. The president shall be commander-in-chief of 
the army and navy of the United States ; and congress, 
shall have power to make all laws which shall be neces- 

34 



266 GOVERKMEKT. 

sary and proper to carry into execution such power. 
The judicial power of the United States shall be vested 
in one supreme court and in such inferior courts as the 
congress may from time to time ordain and establish ; 
and congress shall have power to make all laws neces- 
sary and proper for carrying to execution such power. 
Thus this eighteenth clause of the eighth section of the 
first article of the constitution gives to congress express 
authority to legislate to any extent that legislation may 
be necessary in administering the sovereign authority 
of the nation in respect to all subjects committed to the 
jurisdiction of the general government. Under this 
clause, much that has been classed as belonging to the 
implied power of the constitution is expressly granted. 
In truth, under its just operation, there is little left to 
implication. 



CHAPTER XIY. 

PROHIBITIONS AND RESTRICTIONS. 

§ 450. Sections nine and ten of the first article are 
made up of prohibitions and restrictions imposed upon 
the general government, and also upon the state gov- 
ernments. These prohibitions and restrictions of power 
become important as manifesting the understanding of 
those who framed and adopted the constitution, as to 
the extent of powers otherwise supposed to be granted. 
For it is a plain proposition, that there existed no 
occasion to limit or restrict the exercise of powers not 
granted ; and the form of prohibition implies that those 
making it, deemed it to be necessary. Thus, the first 
clause of the ninth section of the first article of the 
constitution provides, that the migration or importation 
of such persons as any of the states now existing shall 
think proper to admit, shall not be prohibited by the 
congress prior to the year one thousand eight hundred 
and eight ; but a tax or duty may be imposed on such 
importation not exceeding ten dollars for each person. 
Unless the authority to prohibit the migration or import- 
ation of persons into the country had been conferred 
upon congress by the constitution, there was no occa- 
sion for inserting such prohibition. The only authority 
conferred upon congress touching the subject of the 
migration and of the importation of persons, is to be 



PROHIBITIONS AND RESTRICTIONS. 267 

found in the third clause of the eighth section of the 
first article, taken in connection with the eighteenth 
clause of the same section. Thus, congress shall have 
power to regulate commerce with foreign nations, and 
among the several states, and with the Indian tribes ; 
and shall have power to make all laws which shall be 
necessary and proper for carrying into execution such 
power. The construction put upon this provision of 
the constitution by the inhibitions of the first clause 
of the ninth section, imports that, according to the 
understanding of those who framed and adopted the con- 
stitution, congress had full authority over the subject 
of intercourse between the United States and foreign 
nations ; and also between the several states, extending 
to the migration from state to state ; and also to the 
importation of persons from abroad, into the United 
States. The migration of persons has reference to the 
right to pass irom state to state within the union ; 
while the importation of persons has reference to bring- 
ing tliem in from abroad. This prohibition extended 
only for the term of twenty years; so that after the 
year eighteen hundred and eight, congress had plenary 
authority over the whole subject, and still has. In 
short, the prohibitions of the ninth section imply, that 
in the opinion of the authors of the constitution, the 
whole authority upon those subjects was conferred upon 
congress. It is not to be denied that the persons men- 
tioned in this first clause of the ninth section, were 
supposed to be slaves ; and that the effect of this prohi- 
bition was to permit the continuance of the slave trade 
in the United States for the term of twenty years. 
That is, the general government had no authority to 
prohibit the importation of slaves into the United 
States prior to eighteen hundred and eight ; nor had it 
authority over the coastwise and interstate trade in 
slaves prior to that time. But as soon as that limitation 
of the power of the general government ceased, the 
subject of the foreign and domestic slave trade was 
entirely within the legal control of congress, and the 
traffic in slaves carried on between the slave-breeding 
and the planting states, could have been prohibited at 
any time thereafter. 

§ 451. This prohibition was a compromise between 
the friends of the union, and the people of certain 
states, who refused to become members of the proposed 
union unless the right to bring in slaves from abroad 



268 GOVERNMENT. 

for a limited time, was conceded to the states. The 
public sentiment of the nation was against this. But 
this concession seemed the only alternative to the forma- 
tion of a national government, which would ultimately 
have authority over the whole subject. The accusation 
sometimes made against the United States, that by this 
I^rovision they legalized for twentj^ years an act which 
they afterward declared piracy, is not strictly just. It is 
to be remembered that at the time of the institution of 
the government, each state exercised authority inde- 
pendent of the other, because there was no organizd 
authority to supervise its political action; — that the 
people of the several states, though a nation in fact, 
had no organized government to represent them in their 
national character as sovereign. Therefore, in the insti- 
tution of the general government, it became necessary 
to exercise a spirit of concession and compromise in order 
to come to some basis of union ; and while the general 
sentiment of the nation was in favor of the immediate 
suppression of the traffic in slaves, there were certain 
states which would not agree to it, and place themselves 
under an authority with power to enforce such regula- 
tion. To insist upon such condition was to defeat the 
whole. Therefore, patriotic citizens concluded to con- 
cede to the states the right to import slaves into the 
country for the period of twenty years, when they would 
get control of such power ; that such would be a 
wiser policy than not to get control of it at all. They 
acted upon the hypothesis, that it was better to begin- 
with little even, than to reject all, because everything 
could not be obtained at the commencement. But after 
the government was instituted, congress lost no time in 
interdicting the traffic in slaves as far as its power 
extended, by prohibiting American citizens from carry- 
ing it on between foreign countries ; and by prospective 
legislation it abolished the whole traffic as soon as the 
limitation of its authoritj^ in that respect, was at an end. 
Mild and moderate penalties were found to be ineffect- 
ual, and finally the slave trade was declared piracy, and 
made punishable with death.^ 

§452. The terms "migration" and "importation" are 
of peculiar significance in this ninth section of the con- 
stitution. Slaves were an article of commerce between 
the several states ; and they were also brought in from 
abroad. The clause conferring upon congress the power 

1 Act 1820, ch. 113. . 



PROHIBITIONS AND RESTRICTIONS. 269 

to regulate commerce with foreign nations and among 
the several states, necessarily included the power to 
control this commerce in slaves, not only from abroad, 
but also among the states. Hence, the prohibition. 
The migration — that is, the passing from place to place 
within the United States — of such persons as any of 
the states now existing shall think proper to admit, shall 
not be prohibited by the congress prior to the year one 
thousand eight hundred and eight. Nor shall the 
importation — that is, the bringing in from abroad — of 
such i)ersons as any of the states now existing shall 
thiuk proper to admit, be prohibited by the congress 
])rior to the year one thousand eight hundred and eight. 
The purpose of this provision being to extend to the 
original thirteen states the right to supply themselves 
with slaves either from abroad or from the neighboring 
states, congress always had the power over this subject 
except as to the original thirteen states. That is, any 
of the states then existing, had a right to be permitted, 
under this restriction, to bring into their jurisdiction 
slaves from auy quarter. But it may be seriously 
questioned, whether Florida, Alabama, Louisiana, Mis- 
sissippi, Tennessee, Arkansas, Missouri or Kentucky 
had any such right. They were not then existing states. 
But since slavery has ceased as a legal condition in all 
of the states, it is no longer a question of any impor- 
tance to be considered. 

g 453. " The privilege of the writ of liaheas corpus 
shall not be suspended unless, when in cases of rebellion 
or invasion, the public safety may require it." ^ The 
constitution contemplates a state of peace and general 
security, when the ordinary functions of civil govern- 
ment will be adequate to every requirement. But it 
also contemplates a condition of public danger when 
the ordinary functions of civil government will not be 
adequate to the exigencies of the times ; when the civil 
administration will be obliged to give place to the mar- 
tial administration of authority. But whether the civil 
or military authorities administer, the authority admin- 
istered is the same ; the end sought is the same ; and the 
government administering is the same. It is only a 
different mode of administration, suited to different 
circumstances. In times of jjeace, all presumptions are 
in favor of peace. It is presumed that every man will 
obey the law ; and that every man has obeyed the law ; 

1 Art. 1, 2 9, Const. U. 8. 



270 GOVERNMENT. 

and, although the law be disregarded, every man is pre- 
sumed innocent until his guilt is established. Every 
subject is to be protected in the enjoyment of his natu- 
ral liberty until he is accused of some delinquency ; and 
then, his personal liberty can be interfered with only by 
due process of law. When arrested, he can require to 
be informed of the cause of his arrest, the nature of the 
accusation, and demand a speedy and impartial trial. 
If this be denied to him, the great writ of liberty — the 
hcibeas corims — will come to his aid, and if illegally or 
unjustly detained, restore him to liberty. The civil 
administration of government is designed for peace. It 
is cautious, deliberate, formal, exact, and governs gen- 
erally by silent, unostentatious authority. It orders 
and is obeyed without strife. Its power is the voice 
of authority evidenced by the peaceful seal, silent, but 
potential. In the institution of the general government, 
the civil department was intrusted with the exercise 
of the civil powers in time of peace. When no danger 
threatened by invasion from without or rebellion from 
within, all the presumptions in favor of peace, security 
and innocence were to continue. The silent authority 
of the law was to govern ; and no person was to be 
interfered with except in due form of law. The consti- 
tution contemplates this condition of peace as the natural 
and ordinary condition of the nation, especially in the 
internal administration of its authority. All its civil 
provisions are designed to apply as the supreme author- 
ity in the civil administration of its powers. Then it is 
that all its forms of administration must be observed ; 
that courts of justice must be open to all to hear their 
complaints ; to give them its process ; to determine 
their rights, and to execute the judgments of the law. 
Then it is that the privilege of the writ of habeas corims 
cannot be suspended; — that no soldier can be quar- 
tered in any house without the consent of the owner; — 
that the right of the people to be secure in their persons, 
houses, papers and effects against unreasonable searches 
and seizures, cannot be violated ; — that warrants must 
be issued only upon probable cause, supported by oath 
or affirmation, and particularly describing the place to 
be searched, and the person or thing to be seized ; — 
that no person can be held to answer for a capital or 
otherwise infamous crime, unless upon presentment 
or indictment of a grand jury, &c. All these, and 
many other provisions of the constitution, refer to the 



PROHIBITION'S AND RESTRICTIONS. 271 

civil administration of authority in time of peace, and 
are supremely binding upon government and people. 
But the civil administration of authority is limited to 
times of peace and public security incident thereto ; 
and is not suited or designed to apply to, the condi- 
tion of war ; when it is said, et silent inter leges arma; 
when civil courts are shut, and the voice of the law is 
silent ; — then the privileges of the writ of liaheas corpus 
may be suspended, because the public safety requires 
it ; — then a soldier may be quartered in any house in a 
manner prescribed by law, though the owner thereof 
does not consent thereto; — then persons maybe seized, 
their houses and papers may be searched, without 
formal warrants supported by oath, &c. ; — then persons 
may be held to answer for capital and other offenses 
without presentment or indictment by grand jury, &c. 

% 454. In general, it is a principle of civil administra- 
tion, that the law can only take notice of delinquencies 
which have already occurred ; can only punish offenses 
committed ; and although it can, in certain cases, inter- 
fere to prevent injuries, yet such is not the general 
character of its administration. But it is otherwise in 
a time of public danger, occasioned by the presence of a 
rebellion or an invasion by an armed force ; when the 
forms of law are discarded ; when its authority is 
despised, and force bears sway; — then all the civil 
presumptions applicable to a time of peace and quiet 
submission to the authority of the law cease, because 
the condition upon which the presumptions were based 
have ceased. Then men were presumed to be obedient ; 
now they are openly in rebellion ; — then they were 
presumed to be loyal ; now they are known to be trai- 
torous ; — then they were presumed to be supporters of 
the public authority ; now they are known to seek its 
overthrow. President Lincoln, in answer to a letter of 
May 19, 1863, from the Hon. Eeastus Corning and 
others, inclosing the resolutions of a public meeting held 
at Albany, K Y., on the 16th of the same month, presents 
the subject in forcible language: "Ours," says he, "is a 
case of rebellion — so called in the resolutions before 
me — in fact, a clear, flagrant and gigantic case of 
rebellion; and the provision of the constitution that 
' the privilege of thQ writ of habeas corpus shall not be 
suspended unless when, in cases of rebellion or invasion, 
the public safety may require it,' is the provision which 



272 GOVERNMENT. 

specially applies to our present case. This provision 
plainly attests the understanding of those who made 
the constitution, that ordinary courts of justice are 
inadequate to cases of rebellion — attests their purpose, 
that in such cases men may be held in custody, whom 
the courts, acting on ordinary rules, would discharge. 
Habeas corpus does not discharge men who are proved 
guilty of defined crime ; and its suspension is allowed 
by the constitution on purpose that men may be arrested 
and held who cannot be proved to be guilty of defined 
crime, ' when, in cases of rebellion or invasion, the 
public safety may require it.' This is precisely our 
present case — a case of rebellion, wherein the public 
safety does require the suspension. Indeed, arrests by 
process of courts, and arrests in cases of rebellion, do 
not proceed altogether upon the same basis. The former 
is directed at the small percentage of ordinary and 
continuous perpetration of crime; while the latter is 
directed at sudden and extensive uprisings against the 
government, which, at most, will succeed or fail in no 
great length of time. In the latter case, arrests are 
made, not so much for what has been done, as for what 
probably would be done. * * Of how little value the 
constitutional provision I have quoted, will be rendered, 
if arrests shall never be made until defined crimes shall 
have been committed, may be illustrated by a few 
notable examples : Gen. John C. BEECKiNEiDaE, Gen. 
Egbert E. Lee, Gen. Joseph E. Johnstoist, Gen. John 
B. Magrudbr, Gen. Wm. B. Preston, Gen. Simon B. 
BucKNER and Commodore Franklin Buchanan, now 
occupying the very highest places in the rebel war 
service, were all within the power of the government 
since the rebellion began, and were nearly as well 
known to be traitors then as now. Unquestionably, had 
we seized and held them, the insurgent cause would 
have been much weaker. But no one of them had then 
committed any crime defined in the law." 

g 455. During the early part of the civil war — Feb- 
ruary, 14, 1862 — the subject of making military arrests 
was transferred to the war department, representing the 
authority of the president as commander-in-chief, which 
department in issuing an executive order in relation to 
state prisoners, recited, in substance, that the break- 
ing out of a formidable insurrection based on a conflict 
of political ideas, being an event without precedent in 



PROHIBITIONS AND RESTRICTIONS. 273 

the United States, was necessarily attended by great 
confusion and perplexity of the public mind. Disloyalty, 
before unsuspected, suddenly became bold, and treason 
astonished the world by bringing at once into the field 
military forces superior in numbers to the standing army 
of the United States ; — that every department of gov- 
ernment was paralyzed by treason ; defection appeared 
in the senate — in the house of representatives — in the 
cabinet — in the federal courts ; ministers and consuls 
returned from foreign countries to enter the insurrec- 
tionary councils, or land or naval forces ; commanding 
and other oflQcers of the army and in the navy betrayed 
the counsels, or deserted their posts for commands in the 
insurgent forces. Treason was flagrant in the revenue, 
and in the post-ofiice, as well as in the territorial 
governments and in the Indian reserves. Not only gov- 
ernors, judges, legislators and ministerial officers in the 
states, but even whole states rushed one after another 
with apparent unanimity, into rebellion. The capital 
was besieged, and its connection with all the states 
cut off. Even in portions of country the most loyal, 
pofitical combinations and secret societies were formed 
furthering the work of disunion ; while from motives of 
disloyalty or cupidity, or from excited passions or per- 
verted sympathies, individuals were found furnishing 
men, money and materials of war and supplies to the 
insurgent military and naval forces. Armies, ships, 
fortifications, navy-yards, arsenals, military posts and 
garrisons, one after another were betrayed or abandoned 
to the insurgents. Congress had not anticipated, and 
so had not provided for the emergency. The municipal 
authorities were powerless and inactive. The judicial 
machinery seemed as if it had been designed not to 
sustain the government, but to embarrass and betray it. 
Foreign intervention, oi^enly invited by the insurgents 
and industriously instigated by the abettors of the 
insurrection, became imminent, and was only x)revented 
by the practice of strict and impartial justice, with the 
most perfect moderation in our intercourse with nations. 
The public mind was alarmed and apprehensive, though 
fortunately not distracted or disheartened. In this 
emergency the president felt it his duty to employ with 
energy the extraordinary powers which the constitution 
confided to him in cases of insurrection. To the extent 
it seemed necessary, he substituted the martial for the 

35 



274 GOVERNMENT. 

civil powers of the government, that lie might avert 
the public danger. ^ 

§ 456. In time of war or rebellion, when the danger 
is present in the midst of the people, and when the 
forms and rules of law as applicable to a time of peace, 
can be made an instrument of danger, rather than of 
security ; when force must repel force, and the machina- 
tions of the enemy must be thwarted by the seizure 
of all instruments of mischief, of whatever character, 
and wherever found, then the martial administration 
of authority is demanded, and the obtrusion of civil 
authority to arrest or hinder the eflSciency of the mili- 
tary arm must not be permitted. The suspension of 
the privilege of the writ of hcibeas corpus implies, that 
in time of rebellion or invasion, when the public safety 
requires it, the civil functions of government are to 
cease to any extent necessary ; and that those charged 
with the exercise of this power are to determine when 
that necessity occurs.^ It is to be remembered that, 
under the constitution, the same congress which exer- 
cises supreme legislative authority in time of peace, 
also remains supreme in time of rebellion or war. The 
same executive head of the nation in time of peace, 
remains the head of the nation in time of war. In 
time of peace he executes the authority of the nation 
by due process of law, subject to the supervision of 
those civil tribunals authorized to supervise his civil 
administration. But in time of rebellion or war he 
executes the same authority of the nation ; not civilly, 
as the executive head of the nation, but by martial 
power, as the commander-in-chief and military head of 

1 See executive order in relation to state prisoners, dated War Department, 
February 14, 1862. 

2 Opinion of Judge Stewabt, on the application of Senator Pugh to the 
Circuit Court of the United States at Cincinnati, May 5, 1863, for a writ of 
habeas corpus, to bring before said Circuit Court Clement L. Vallandigham, 
who had been arrested by order of Gen. Burnside, and ordered for trial before 
a court-martial. Said Judge Stewart: " Men should know and lay the truth 
to heart, that there is a course of conduct not involving overt treason, and not 
subject, therefore, to punishment as such, which nevertheless implies moral 
guiit and a gross oflfense against the country. Those who live under the pro- 
tection, and enjoy the blessing of our benignant government must learn that 
they cannot stab its vitals with impunity. If they cherish hatred and hostil- 
ity to it, and desire its subversion, let them withdraw from its jurisdiction, 
and seek the fellowship and protection of those with whom they are in sym- 
pathy. If they remain with us, while they are not of us, they must be subject 
to such course of dealing as the great law of self-preservation prescribes and 
will enforce. And let them not complain if the stringent doctrine of military 
necessity should find them to be the legitimate subjects of its action. I have 
no fear that the recognition of this doctrine will lead to any invasion of the 
personal security, or personal liberty of the citizen. It is rare indeed that 
the charge of disloyalty will be made on insufficient grounds. But if there 
should be an occasional mistake, such an occurrence is not to be put in com- 
petition with the preservation of the nation ; and I confess I am but little 
m^oved by the eloquent appeals of those who, while they indignantly denounce 
violation of personal liberty, look Avith no horror upon a despotism as unmiti- 
gated as the world has ever witnessed." 



PROHIBITIONS AND RESTRICTIONS. 275 

the nation in actual war. But whether the president 
administer the authority and power of the nation, 
either as chief executive, or as commander-in-chief, he 
administers in virtue of the authority of the consti- 
tution, a-s regulated and controlled by the supreme 
legislative authority of the nation. And whether he 
employ the civil agencies of administration in times of 
peace, or the martial agencies in times of rebellion or 
war, it is the same government, administering the same 
authority, according to the forms, and in the manner, 
prescribed by the people themselves. The president pro- 
claiming martial law, and putting on the robes of power 
as commander-in-chief, when the presence of rebellion 
or war requires it, is performing as much a constitutional 
duty as when administering civilly according to estab- 
lished legal forms in times of peace. It is his duty to 
see that the laws are faithfully executed — as well the 
martial, in times of public danger arising from the pres- 
ence of rebellion or war, as the civil, in times of public 
security and peace. It is his duty to change the civil 
to the martial functions of power, whenever and wher- 
ever, in his judgment, the public safety demands it. 

S 457. In the midst of a civil war, the commander-in- 
chief of the loyal forces can, undoubtedly, whenever 
the public safety demands it, suspend the administration 
of civil authority, and substitute martial law in its 
place ; and this may be done whenever and wherever it 
is necessary. But it is more in accordance with the 
genius of the American government, to provide by law 
for the substitution of martial for civil authority, when 
it is likely to be necessary to extend the operation of 
martial law over a large extent of territory, and to 
continue it for any considerable time. Accordingly, con- 
gress in the winter of 1863, during the great rebellion, 
gave to the president authority, during the continuance 
of the war, "to declare the suspension of the writ of 
1iol)eas corims, at such times, and in such places, and 
with regard to such persons as in his judgment the 
public safety may require." Under this authority 
the president caused many evil disposed persons to be 
arrested in the loyal states, and to be confined in forts 
and military prisons. For exercising this necessary 
power, he was denounced as a tyrant, and his authority 
to make such arrests in places remote from the army, 
and from the insurgent states, was warmly contested. 
Under the guise of devotion to the " union and the 



276 GOVERNMENT. 

constitution," public meetings were called, and resolu- 
tions were passed, denouncing the president for causing 
disloj^al persons in the loyal states to be arrested. In 
reply to resolutions of this character sent to him by the 
chairman of a democratic meeting held in the city of 
Albany on the 16th day of May, 1863, he remarks : 
*' By the third resolution the meeting indicate their 
opinion, that military arrests may be constitutional in 
localities where rebellion actually exists ; but that such 
arrests are unconstitutional in localities where rebellion 
or insurrection does not actually exist. They insist that 
such arrests shall not be made ' outside of the lines of 
necessary military occupation, and the scenes of insur- 
rection.' Inasmuch, however, as the constitution itself 
makes no such distinction, I am unable to believe there 
is any such constitutional distinction. I concede that 
the class of arrests complained of can be constitutional 
only when, in cases of rebellion or invasion, the public 
safety may require them ; and I insist that in such cases 
they are constitutional wherever the public safety does 
require them, as well in places to which they may pre- 
vent the rebellion extending, as in those where it may 
be already prevailing ; as well where they may restrain 
mischievous interference with the raising and supplying 
of armies to suppress the rebellion, as where the rebel- 
lion may actually be ; as well where they may restrain 
the enticing of men out of the army, as where they 
would prevent mutiny in the army ; equally constitu- 
tional at all places where they will conduce to the public 
safety, as against the dangers of rebellion or invasion." ^ 

1 Letter of President Lincolk to Erastus Corning and others, June 13, 1863. 
In this letter the president continues : " Take the particular case mentioned 
by the meeting. It is asserted, in substance, tliat Mr. Vallandigham was, by 
a military commander, seized, tried, and for no otlier reason than words 
addressed to a public meeting, in criticism of the course of tlie administration, 
and in condemnation of the military orders of tlie general. Now if tliere be 
no mistake about tliis ; if this assertion is the trutli, and the whole truth; if 
there was no other reason for tlie arrest, then I concede tliat the arrest was 
wrong. But tlie arrest, as I understand, was made for a very different reason. 
Mr. Vallandighaixi avows liis hostility to the war, on the part of tlie union, 
and his arrest was made because he was laboring with some effect to prevent 
the raising of troops; to encourage desertions from tlie army; and to leave tlie 
rebellion without an adequate military force to suppress it. Pie was not 
arrested because he was damaging the political prospects of the administra- 
tion, or the personal interests of the commanding general; but because he 
was damaging the army, upon the existence and vigor of which the life of the 
nation depends. He was warring upon the military, and this gave the mili- 
tary constitutional jurisdiction to lay hands upon him. If Mr. Vallandigham 
was not damaging the military power of the country, then this arrest was 
naade on mistake of facts, whicn I would be glad to' correct on reasonably 
satisfactory evidence. I understand the meeting whose resolutions I am con- 
sidering, to be in favor of suppressing the rebellion, by military force — by 
armies. Long experience has shown tliat armies cannot be maintained unless 
desertions shall be punished by the severe penalty of death. The case requires, 
and the law and the constitution sanction this punishment. Must I shoot 
a simple-minded soldier boy who deserts, while I must not touch a hair of a 
wily agitator who induces him to desert ? * * If I am wrong on this question 
Of constitutional power, my error lies in believing that certain proceedings 



PROHIBITIONS AND RESTRICTIONS. 277 

S 458. It is a great error to suppose that the constitu- 
tion has provided for the same mode of administration 
in times of i)ublic danger, occasioned by the presence 
of rebellion, general insubordination, or invasion, and 
iu times of peace and public security. It is not that 
the constitution itself is different in the time of insur- 
rection or invasion, from what it is in times of peace ; 
but it has provided for modes of administration, differ- 
ent under the dangers of war, and the security of peace. 
When there is nothing to interfere with the silent, yet 
potent authority of the law, then the civil mode of 
administration is constitutional ; but when, by reason 
of rebellion or invasion, the civil administration becomes 
ineffectual to public security, then the martial mode of 
administration is constitutional ; and whether the one 
mode or the other shall be adopted is left to the deter- 
mination of either the president or congress, according 
to the nature of the exigency calling for their determin- 
ation. When the danger is not imminent, and it is 
safe to await the action of congress, then it would be 
better to leave the question to the action of that body. 
But if, by any sudden invasion or rebellion the public 
safety should demand more speedy action, then there 
can be no doubt it is the constitutional duty of the 
president to proclaim martial law, and apply that mode 
of administration contemplated by the constitution 
during the existence and i)resence of rebellion or inva- 
sion. The fears lest civil liberty should be overthrown 
by the suspension of the privileges of the writ of haheas 
corims during the great rebellion, had no just founda- 
tion ; nor were they sustained by facts or logic ; and the 
history of the times as interpreted and understood in 
the future, will reveal the opposition to the measures 
of the administration, in this respect, as having its 
foundation in the craft of the mere politician, and not 
in the judgment of the statesman or patriot.^ 

are constitutional when, in cases of rebellion or invasion, the public safety 
requires them, which would not be constitutional when, in the absence of 
rebellion and invasion, the constitution does not require them; in other 
words, that the constitution is not, in its application, in all respects the same 
in cases of rebellion or invasion involving the public safety, as it is in times 
of profound peace and public .security." 

1 To the meeting held at Albany. May 16, 1863, Governor Seymottr writes as 
follows: "If this proceeding " — speaking of the arrest of Vallandlgham — "is 
approved by the government, and sanctioned by the people, it is not merely a 
Btep toward revolution — it is revolution. It will not only lead to military 
despotism — it establishes military despotism. In this aspect it must be 
accepted, or in this aspect rejected. * * The peope of this country now wait 
with the deepest anxiety the decision of the administration upon these acts. 
Having given it a generous support in the conduct of tlae war, we pause to see 
what kind of a government it is for which we are asked to pour out our blood 
and our treasure. The action of the administration will determine in the minds 



278 GOVERNMENT. 

g 459. No bill of attainder or ex post facto law shall 
be passed. Bills of attainder are defined to be signal 
exertions of penal justice, and adapted to exigencies 
unprovided for in the penal code. They are such special 
acts of the legislature as inflict punishment upon per- 
sons supposed to be guilty of high offenses, such as 
treason and felouy, without any conviction in the ordi- 
nary course of judicial proceedings. In England, if the 
special act inflicted capital punishment, as in cases of 
treason or felony, it was denominated a Mil of attainder; 
but if it inflicted a milder punishment, it was more 
properly, a dill of pains and penalties. In Mils of attain- 
der the legislature assume the judicial magistracy, 
weighing the enormity of the charge, and the evidence 
adduced in support of it ; then they decide the political 
necessity and moral fitness of the penal judgment. 
These legislative sentences of condemnation have the 
force of law, but are applicable only to the particular 
delinquent, and expire as to their chief or positive 
effects, with the occasion of their enactment. ^ Thus, 
persons were, by act of parliament, attainted of treason 
after death ; and Lord Ooke says many such acts have 
been made. ^ These attainders were such as affected 
either the crime, the evidence, or the punishment. As 
affecting the crime, it was usual in England in times of 
domestic rebellion to pass acts of parliament inflicting 
penalties of attainder on j)ersons by name, who had 
levied war against the king, and had fled from justice, 
provided they should not slirrender by a day prefixed. 
The neglecting to surrender by the appointed day, 
constituted, or rather, consummated, the new treason 
against which the attainder was directed. Until that 
time, it was inchoate and unripe for the operation of 

of more than one-half of the people of the loyal states, whether this war is 
waged to put down rebellion at the south, or destroy free institutions at the 
north." The meeting for which tliis letter was written, and at which it was 
read, was denominated a meeting of the democratic party, and it pledged the 
party to its views. Similar meetings of the same party were held throughout 
the north, breathing forth the same spirit. And particularly wei-e such meet- 
ings held in New York city and Philadelphia. On the 11th of June, a state 
convention of tlie democratic party was held at Columbus, Ohio, and Vallan- 
digham was their nominee for governor. It was well known to these men 
— that is, to the leading ones — that at the very time they were holding 
these political meetings, and denouncing the administration for making these 
arrests, that a secret conspiracy existed throughout the western, middle and 
eastern states, against the government of the United States, and in the interest 
of the rebellion ; — that they boasted of an efficient, organized band of over 
three hundred thousand strong, scattered throughout the north, ready to rise 
at a preconcerted signal, and involve the north in bloodshed and civil strife :— 
that the boldness of many of those who were arrested was owing to the 
fact, that they believed the Lincoln government, as they called it, was about 
to be overthrown. 

1 2 Wooddeson, pp. 621, 622. 

a 4 Inst., 36, 37. 



PROHIBITIONS AND RESTRICTIONS. 279 

the particular statute.^ The acts of attainder passed 
against domestic rebels were enforced in a summary 
manner. No indictment was preferred to a grand jury; 
but the statute was certified into chancery by the clerk 
of the parliament, in pursuance of writ directed to him 
for that purpose ; it was then removed into the king's 
bench, where the whole proceeding was entered upon 
the record, and the prisoner was asked what he had to 
allege why execution should not be awarded against 
him. These bills of attainder in their operation in 
respect to crime, sometimes determined things to be 
treason which by no prior law had been so declared.^ It 
is probably for this reason, that ex i)ost facto laws are 
prohibited in this connection. Thus, " No bill of attain- 
der or ex 2)ost facto law shall be passed." A bill of 
attainder as affecting the evidence, was passed in the 
case of Sir John Fenwick, changing the law as to 
the evidence in his case. The statute requiring two 
witnesses in the more atrocious kinds of high treason, ^ 
the bill in Fen wick's case was sustained upon the testi- 
mony of a single witness, not upon oath, by allowing 
written evidence not competent in ordinary trials ; and 
by hearing proof of what had been sworn when Sir John 
Fenwick was not a party, nor present ; and of things 
transacted by his wife, which could not legally excul- 
pate or convict her husband. " Such are the nature of 
bills of attainder which are prohibited by the constitu- 
tion. By ex post facto law, in the constitution, is meant 
only those acts which are of a criminal or penal charac- 
ter. The supreme court define an ex post facto law thus : 
" It is one which renders an act punishable in a manner 
in which it was not punishable when committed." ^ The 
supreme court have also decided that the term ex post 
facto laiv does not apply to civil laws, or civil pro- 
ceedings. ^ 

.§ 4G0. It is a rule of constitutional government, that 
the legislative and judicial ofiice shall be separate, and 
one body shall not exercise the functions of both. The 
constitution of the United States, which provides that 
the judicial powers of the nation shall be vested in one 
supreme court, and in such inferior courts as the con- 
gress may from time to time ordain and establish, in 

1 2 Wooddeson, pp. 625, 626. 

2 Statute 16 Chas. I, ch. 1; 9 Pari. Hist., p. 288; 2 Wooddeson, p. 631. 

3 7 W. Ill, c. 3, g 2. 

4 2 Wooddeson, 635. 
6 6 Cranch, 138, 

6 8 Peters, 110. 



280 GOVERNMENT. 

spirit makes it impossible for con.2:ress to pass bills of 
attaiuder without this special prohibition. IsTevertheless, 
the special prohibition was properly inserted, showing 
in express terms, that the founders of the American 
government repudiated that species of judicial legisla- 
tion tending to a subversion of that liberty, and of those 
rights of the subject, which the government was insti- 
tuted to protect and preserve. Says Dr. Palet: "This 
fundamental rule of civil jurisprudence is violated in 
the case of acts of attainder or confiscation, in bills of 
pains and penalties, and in all ex post facto laws what- 
ever, in which parliament exercises the double office 
of legislature and judge. And whoever either under- 
stands the value of the rule, or collects the history of 
those instances in which it has been invaded, will be 
induced to acknowledge that it had been wiser and 
safer never to have departed from it. He will confess, 
at least, tliat nothing but the most manifest and imme- 
diate peri] of the commonwealth will justify a repetition 
of these dangerous examples. If the laws in being do 
not punish an offender, let him go unpunished ; let the 
legislature, admonished of the defect of the law, i)ro- 
vi^e against the commission of future crimes of the 
same sort. The escape of one delinquent can never 
produce so much harm to the community, as may arise 
from the infraction of a rule upon which the purity of 
public justice and the existence of civil liberty essen- 
tially depend." 

g 461. While considering the subject of dills of 
attainder, and ex post facto laiv, another provision of the 
constitution comes appropriately under consideration. 
Section three of the third article provides, that "trea- 
son against the United States shall consist in levying 
war against them, or in adhering to their enemies, 
giving them aid and comfort. That no person shall 
be convicted of treason unless upon the testimony of 
two witnesses to the same overt act ; or on confession 
in open court. That congress shall have power to 
declare the punishment of treason; but no attaiuder 
of treason shall work corruption of blood, or forfeiture, 
except during the life of the person attainted." These 
restrictions upon the constituents of treason, the evi- 
dence requisite to a conviction, and the punishment to 
be denounced against it, had reference to certain legal 
abuses or enormities practiced under the constitution of 
the English government, In England treason consisted 



PROHIBITION'S AND RESTRICTIONS. 281 

in any act whicli the government saw fit to dcnonnco 
as such. The term treason imported betrayal, treachery, 
or breach of faith. It was a general appellation made 
nse of by the law to denote not only oifenses against 
the king and government, bnt also that accumulation 
of guilt which arises whenever a superior reposes confi- 
dence in a subject or inferior, between whom and him- 
self there subsists a natural, civil or even a spiritual 
relation ; and the inferior so abuses that confidence, so 
forgets the obligations of duty, subjection and allegiance, 
as to destroy the life of any superior or lord. This was 
looked upon as proceeding from the same principle of 
treachery in private life, as would have urged him who 
harbors it, to have conspired in public against his liege 
lord and sovereign: and, therefore, for a wife to kill 
her lord or husband, a servant his lord or master, an 
ecclesiastic, his lord or ordinary, these being breaches of 
the lower allegiance of private and domestic faith, are 
denominated j>eJii treason. But when disloyalty so 
rears its crest, as to attack majesty itself, it is called by 
way of distinction, high treason.^ By the ancient com- 
mon law there was great latitude left in the breast of the 
judge to determine what constituted treason, whereby 
the creatures of tyrannical princes had opportunity to 
create abundant constructive treasons : that is, to raise by 
forced and arbitrary construction, offenses into the crime 
and punishment of treason which never were suspected 
to be such, But to prevent these inconveniences arising 
from the multitude of constructive treasons, the statute 
of 25 Edward III, ch. 2, was made, which defined what 
oifenses only should, for the future, be held to be 
treason. This statute comprehended all kinds of trea- 
son under seven distinct branches. 

1- Where a man should compass or imagine the death 
of the king, his queen, or their eldest son and heir. 

2. Where a man violates the king's companion, or 
eldest daughter unmarried, or the wife of his eldest 
son, and heir. 

3. Where a man levied war against the king in his 
realms. 

4. Where a man is adherent to the king's enemies in 
his realm, giving to them aid and comfort in the realm 
or elsewhere. 

5. Where a man countefeits the king's great or privy 
seal. 

1 4 Bl. Com., 75. • 

36 



282 GOVERNMENT. 

6. Where a man counterfeits the king's money, or 
brings false money into the realm, counterfeit to the 
money of England, knowing the money to be false to 
merchandise and to make payment withal. 

7. If a man slay the chancellor, treasurer, or the 
king's justices of the one bench or the other, justices 
in eyre, or justice of the assize, and all other justices 
assigned to hear and determine, being in their places 
doing their offices.^ 

But this method of defining what should constitute 
treason ^as not sufficient, to satisfy; so the act pro- 
ceeded, "Because other like cases of treason may 
happen in time to come which can not be thought of 
or declared at i3resent, it is accorded that if any other 
cause, supposed to be treason which is not above speci- 
fied, doth happen before auj judge, the judge shall 
tarry without going to judgment of the treason till the 
cause be shown and declared before the king and his 
parliament, whether it ought to be judged treason or 
other felony. In consequence of this power, constitu- 
tionally inherent in every subsequent parliament, new 
treasons could be declared at any time, and persons 
could be made subject to the punishment of treason 
by bills of attainder, and ex ])ost facto laws, at the pleasure 
of the parliament. This omnipotent power of parlia- 
ment to define an act as treason, and to denounce the 
penalties of treason after the act had been committed, 
is an abuse of legislative x)ower which the constitution 
seeks to avoid: and therefore provides, that no Mils of 
attainder or ex post facto laiv, shall be passed; and goes 
further, and declares what acts alone shall be neces- 
sary to constitute treason, to wit, "treason against the 
United States shall consist only in levying war against 
them, or in adhering to their enemies, giving them aid 
and comfort."- 

g 462. Under the British constitution the transcend- 
ent powers of the legislature or parliament are such, that 
no act can bind a subsequent parliament to its definition 
of treason ; as for example ; under the reign of Ei chard 
II, the legislature was exceedingly liberal in declaring 
new treasons, so much so that in the first year of his 
successor's reign an act was passed reciting " that no 
man knew how he ought to behave himself, to do, speak 
or say, for doubt of such pains of treason ; and therefore 

1 Const. II., s. art. 3, § 1. 

2 4 Bl. Com., pp. 7G— 85. 



PROHIBITIONS AND RESTRICTIONS. 283 

it was accorded that in no time to come any treason be 
judged otherwise than was ordained by the statute of 
King Edward the Third.^ This, says Blackstone, swept 
away at once the whole load of extravagant treasons 
introduced in the time of Richard 11.^ But again 
between the reigns of Henry IV, and Mary, the spirit of 
inventing new treasons was revived, such as offenses 
of clipping money, breaking prison or rescue, when the 
prisoner was committed for treason ; burning houses to 
extort money ; stealing cattle by Welshmen ; execrations 
against the king ; calling him opprobrious names by 
public writing, &c.^ The principle to be noticed is, that 
this power to abuse legislative authority creating new 
treasons ad libitum, as it exists under the British consti- 
tution, is taken away by the American constitution. 
The constitution of the general government has defined 
what acts shall be necessary to constitute treason, and 
congress has no power to extend the definition. The 
Supreme Court of the United States has placed its con- 
struction upon it.^ Said the court, to constitute that 
specific crime, war must be actually levied against the 
United States. However flagitious may be the crime of 
conspiring to subvert, by force, the government of our 
country, such conspiracy is not treason. To conspire to 
levy war, and to levy war, are distinct offenses. The 
first must be brought into open action by the assemblage 
of men for a purpose treasonable in itself, or the fact of 
levying war cannot be committed. * * * it is not 
the intention of the court to say that no individual can 
be guilty of this crime, who has not appeared in arms 
against his country. On the contrary if war be actually 
levied, that is, if a body of men be actually assembled 
for the purpose of effecting by force a treasonable 
purpose, all those who perform any part, however 
minute, or however remote from the scene of action, 
and who are actually leagued in the general conspiracy', 
are to be considered traitors. But there must be an 
actual assembling of men for the treasonable purpose, 
to constitute the levying of war." There is considerable 
latitude left to the court in determining the treasonable 
purpose, as well also as what constitutes adhering to the 
enemies and giving them aid and comfort. During the 
civil war in the United States, the Governor of Virginia 

1 Hen. IV, ch. 10. 

2 Bl. Com., 86. 

3 4 Bl. Com., 76-8.5. 

4 Ex parte Bellman, 4 Cranch, 126. See also U. S. v. Burr, 4Cranch, 469. 



284 GOVERNMENT. 

proposed to Mr. Hinckman, of New York, agent of the 
Kew York and Yirginia Steamsliip Company, payment 
for two steamers of that line which had been seized for 
the rebel service. Mr. Hinckman was informed that an 
acceptance of that offer by him would be treated as 
an act of treason against the United States. Mr. Seward 
stated the point thus : " An insurrection has broken out 
in several of the states of this Union, including Yir- 
ginia, designed to overthrow the government of the 
United States. The executive authorities of that state 
are parties to that insurrection, and so are public ene- 
mies. Their action in seizing or buying vessels to be 
employed in executing that design is not merely without 
authority of law, but is treason. It is treason for 
any person to give aid and comfort to public enemies. 
To sell vessels to them which it is their purpose to 
use as ships of war, is to give them aid and comfort. 
To receive money from them in payment for vessels 
which they have seized for those purposes, would be to 
attempt to convert the unlawful seizure into a sale, and 
would subject the party so offending to the pains and 
penalties of treason, and the government would not 
hesitate to bring the offender to punishment.'' Although 
the constitution thus defines the constituents of treason, 
there is great latitude of construction to determine what 
acts shall amount to levying war ; and what to giving 
aid and comfort to the enemy. 

^ 463. Another evil incident to the power of parlia- 
ment to define or create new treasons was their power 
to receive what species of evidence they pleased, and to 
determine upon what amount to convict of treason. 
Thus, in the reign of William III., Sir John Fenwick 
was indicted for treason upon the oaths of two wit- 
nesses. Sir John obtained a delay of his trial, and in 
the mean time one of the witnesses departed from the 
realm ; and, as the statutes^ then required two witnesses 
to convict of high treason, it became necessary for par- 
liament to provide for his c^se. For this cause a bill 
of attainder was introduced, which brought into the 
house of commons a formal trial. Upon this trial, the 
rules of evidence and the requirements of the statute 
were departed from. A single witness was examined, 
not upon oath, because such was the custom in the 
house of commons ; written evidence not admissible 
in common trials was introduced ; what had been sworn 

1 Edw. VI., cli. 12; 5 and 6 do., ch. 11; 1 and 2 Ph. & M., ch. 10 ; 4 Bl. Com., 356. 



PROHIBITIONS AND RESTRICTIONS. 285 

to in a case in which Sir John was not a party, and 
when he was not present, was given in evidence ; and 
testimony of things transacted by his wife, which could 
neither exculpate nor convict the husband, were ad- 
mitted. In this manner he was convicted, and suffered 
the penalties of treason, except the king remitted all 
the corporal severities which form a part of the ordinary 
judgment, except decapitation.^ Abuses of this charac- 
ter instructed the American people to make it a part of 
the fundamental law of the nation that no person should 
be convicted of treason unless on the testimony of two 
witnesses to the same overt act, or on confession in open 
court. 

g 464. The next abuse incident to the English system 
of creating new treasons ad libitum, which the people 
sought to provide against, was the effect and conse- 
quences of an attainder of the crime. According to the 
English theory, there were certain results following 
the judgment upon conviction of treason, as being 
necessarily incident thereto. The penalty of the law to 
be executed upon the person of one convicted of treason 
was rigorous in the extreme. He was required to be 
put to death with circumstances of unusual cruelty. 
His bowels were to be taken out while he was yet alive, 
and burned in his presence. He was to be quartered, 
decapitated, etc. But in addition to the penalty to be 
inflicted upon the person of the convict, certain inci- 
dents also attended the judgment upon conviction of 
high treason.^ Forfeiture to the king of all his lands 
and tenements of inheritance, whether fee-simple or fee- 
tail, with all his rights of entry on lands or tenements 
which he had at the time of committing the treason, or 
at any time afterwards, to be forever vested in the 
crown. This forfeiture related back to the time the act 
of treason was committed, so as to avoid all intermediate 
sales and incumbrances. The natural justice of this 
forfeiture, says Blackstone, is founded on this consider- 
ation ; that he who hath thus violated the fundamental 
principles of government, and broken his part of the 
original contract betweeh king and people, hath aban- 
doned his connection with society, and hath no longer 
any right to those advantages which before belonged 
to him purely as a member of community ; among 
which social advantages the right of transferring or 

22 Wooddeson, pp. 634, 638; 7 W. III., ch. 3, § 2; Com, Jour., 25 Nov. 1696: 
Lord's Jour., 23 Dec, 1696. 



286 GOVERNMENT. 

transmitting property to others is the chief; and further 
he adds, " Such forfeiture, moreover, whereby his pos- 
terity must suffer as well as himself, will help to restrain 
a man, not only by his sense of duty and dread of per- 
sonal punishment, but also by his passions and natural 
affections, and will interest every dependent and rela- 
tion he has, to keep him from offending in such man- 
ner.^ These forfeitures, consequent upon the attainder 
of treason, differ from those pronounced, or rather cre- 
ated, by the statutes of j^rcEmunire and others in this : — 
the latter forfeitures are made a ]}art of the judgment 
and penalty inflicted by the respective statutes ; and they 
do not follow as mere consequences of the attainder. 
Besides the forfeiture of all estate in lands, the convict 
also forfeits all goods and chattels, with this distinc- 
tion : — Lands are forfeited upon attainder, and not be- 
fore ; goods and chattels are forfeited by conviction ; 
because in many cases, where goods are forfeited, there 
never is any attainder, which happens only where judg- 
ment of death or outlawry are given. The distinction 
between conviction and attainder is this : — The conviction 
may happen without judgment of death or outlawry ; 
but judgment of death or outlawry cannot take place 
until after conviction. When the judgment of the law 
is pronounced, and final action had, then attainder takes 
place. The forfeiture, relating back to the commission 
of the act of treason, instantaneously takes place ; in- 
heritable blood ceases to connect the attainted with the 
past or future, and nothing remains for him in this 
world but the fearful execution of the death sentence, 
with its attendant horrors. 2. The remaining incident 
of attainder of treason, is that of the corruption of 
blood. It is the immediate consequence of the judg- 
ment of attainder; and this corruption of the blood 
proceeds both upward and downward, so that the 
attainted person can neither inherit lands or other heredi- 
taments from his ancestors, nor retain those already in 
possession of, nor transmit them by descent to, any heir ; 
but the same escheat to the lord of the fee, subject to 
the King's superior right of forfeiture ; and he also ob- 
structs all descents to posterity wherever they are 
obliged to derive title through him to a remote ancestor. 
§ 465. When sentence of death, the most terrible and 
highest judgment known to the laws of England, is 
pronounced, the immediate, inseparable consequences 

1 4 Bl. Com., 381. 



PROHIBITIONS AND RESTRICTIONS. 287 

from the common law is attainder. For -when it is now 
clear beyond all dispute that the criminal is no longer 
fit to live upon the earth, but is to be exterminated as a 
monster and a bane to human society, the law sets a 
note of infamy upon him, puts him out of its protection, 
and takes no further care of him, than barely to see him 
executed. He is then called attaint ; attinctiis, stained 
and blackened. He is no longer of any credit or repu- 
tation; he cannot be a witness in any court; neither is 
he capable of performing the functions of another man, 
for by an anticipation of his punishment, he is already 
dead in law. This is after judgment', for there is a great 
difference between a man convicted, and attainted, though 
they are frequently, through inaccuracy, confounded 
together. After conviction only, a man is liable to none 
of these disabilities, for there is still, in contemplation 
of law, a possibility of innocence. Something may be 
ofiered in arrest of judgment : the indictment may be 
erroneous, which will render his guilt uncertain, and 
thereupon the present conviction may be quashed : he 
■mnY obtain a pardon, or be allowed the benefit of cler- 
gy, both of which suppose some latent sparks of merit 
which plead in extenuation of his fault. But when 
judgment is once pronounced, both law and fate conspire 
to i)rove him completely guilty, and there is not the 
remotest probability left of anything to be said in his 
favor. Upon judgment, therefore, of death, and not 
before, the attainder of a criminal commences; or upon 
such circumstances as are equivalent to judgment of 
death; as judgment of outlawry on a capital crime pro- 
nounced for absconding or fleeing from justice which 
tacitly confesses the guilt. For these reasons, either 
upon judgment of outlawry, or of death for treason or 
felony, a man is said to be attainted.^ 

g 466. It was in view of the law on the subject of 
treason, as it then existed in England, that these 
provisions of the constitution were framed. The con- 
stitution not only confined the subject of treason to the 
act of levying war against the nation, and in adhering 
to its enemies, giving them aid and comfort ; and fixed 
upon the nature and quantity of evidence which should 
be indispensible to conviction ; but it went further, to 
abolish or make impossible those incidents of attainder 
of treason already described. It gives to congress, in 
the broadest terms, the power to declare the punishment 

1 4 Bl. Com. 3S0, 381. 



288 GOVERNMENT. 

of treason ; that is, coDgress may impose what penalty 
it thinks j)roper to be inflicted upon the person of the 
criminal, or upon his property ; but whatever is inflicted 
upon him or his, must be a part of the penalty prescribed 
by law ; and shall not follow as the inevitable conse- 
quence of the judgment by which he becomes attaint. 
It is to be remembered, that the consequences of the 
attainder are no part of the penalty denounced against 
the criminal. They follow inevitably, the condition in 
which the criminal is placed in the eye of the law, as 
soon as by the judgment of the court all possible hope 
is extinguished, and the guilty one becomes attainted. 
Then the blood is corrupted, connecting with neither the 
past or the future. Then forfeiture takes place, because 
there is in him nothing of manhood left to which it can 
attach. He is without ancestor or heir ; and what he 
possessed at the time to which the attainder relates, goes 
to the king by forfeiture. In this view the language of 
the constitution is simple and appropriate ; congress 
shall have iDOwer to declare the punishment — afiix the 
penalty — of treason ; but no attainder of treason — that 
is, no tainted condition of the criminal resulting from 
the judgment of condemnation — shall work corruption 
of blood or forfeiture, except during the life of the per- 
son attainted. 

g 467. There have been two classes of construction 
placed upon the last clause of this provision, which 
cause their advocates to arrive at very different results 
as to the effect to be given to it. One party insists that 
it is a limitation upon the penalty which congress is 
empowered to denounce as the punishment for treason ; 
that owing to this provision congress can not make an 
absolute forfeiture of real estate to the government a 
part of the penalty of the crime ; but can extend its 
effect only during the life of the traitor.^ The other 
party insist that it has no reference to the penalty which 
congress is authorized to declare as the punishment for 
treason ; that it refers only to the period during which 
the party shall be liable to be attainted ; that is, the 
attainder shall take place during the life of the person 
attainted. There is a third view which seems to be more 
in accordance with the legal meaning of the language 
used, and the purpose the people had in view at the 
time than either of the foregoing constructions, and it 
excludes both of the others ; that is, it affirms that the 
latter clause of this provision is neither a limitation upon 



PROHIBITIONS AND RESTRICTIONS. 289 

the power of congress to declare the pnnishment of 
treason, nor upon the time during which the person 
shall be attainted ; but that it means, as its language 
imports, that there can be a condition in the criminal 
known as attainted ; produced, as in law, it only can be 
produced, by pronouncing the judgment of the law upon, 
the convicted felon ; and that the incidents of that 
attainder, corruption, of blood and forfeiture can follow 
as in England, but only during the life of the person 
attainted. After death the attainder shall cease ; that 
is, the corruption of blood and forfeiture shall be at an 
end, and as to all that come after him as heirs they may 
take through him as though his blood had never been 
corrupted. Each of these constructions will be consid- 
ered in their order, premising first, that no liglit is to be 
obtained from the debates in the convention framing, or 
the conventions adopting the constitution ; nor has the 
Supreme Court of the United States yet put its con- 
struction upon that clause. 

g 468. The theory that the clause under consideration 
is a limitation upon the power of congress to declare 
the punishment of treason is objectionable for at least 
two reasons. First, the language of the clause forbids 
such construction. To suppose it to be a limitation 
upon the power of congress to affix by law, the pen- 
alty for treason, is to give to the word *' attainder " a 
meaning and an office which, has no warrant in any 
former use. Attainder, as used in law, implies the 
imparting of a state or condition to the person by the 
pronunciation of the sentence which the law denounces 
upon the convicted felon or traitor. Attainted, implies 
the state of the felon produced by the judgment, bereft 
of civil life, of human sympathy and connections ; with- 
out the protection of law, awaiting only to be executed. 
Corruption of blood, and forfeiture are the immediate 
and inseparable consequences of this attainted condition, 
wrought out by the condition itself. Hence the expres- 
sion, "no attainder of treason shall ivork corruption of 
blood or forfeiture except" for a limited time. The 
penalty of the law enters in to make the judgment. 
The judgment of the law produces the attainted condi- 
tion ; and corruption of blood and forfeiture result from 
that condition as an inseparable consequence. It would 
therefore be a most unwarrantable interpretation of the 
language used to make this clause a limitation upon the 
power of Congress to declare the punishment for trea- 
37 



290 GOVERNMENT. 

son. Second, if the language used would admit of such 
interpretation consistently with any former use of the 
same, the provision would so limit the power of 
Congress in denouncing the penalty, as to virtually 
protect the property of the traitor from contiscation or 
even use for any considerable length of time, unless the 
government should preserve the life of the traitor for 
the sake of keeping the use of his property. In all 
governments the penalty of treason, that is, of that 
species of treason which aims at the life of the state or 
government, is death. And after conviction and sen- 
tence, it is not usual to defer for a long time, the period 
of execution. If, then, the extent to which Congress 
can subject the property of the traitor to forfeiture, is 
limited to the period between sentence and execution, 
the life estate, 'per autre vie — during the life of the felon 
— would be of little value. Ordinarily, if justice should 
be done by the speedy execution of the law, upon the 
guilty, the tenant would have little time to raise and 
gather his crops. The estate would commence at the 
moment of judgment, and end on the day of execution. 
Such cannot be the true construction of that clause. 

% 469, The theory that the clause under consideration 
is a limitation upon the period during which it shall be 
lawful to convict, adjudge and attaint a traitor, is objec- 
tionable for two reasons. First, because the structure of 
the sentence must be distorted to adapt it to the expres- 
sion of such idea or limitation. Had the authors of 
that instrument intended to express such a limitation 
they would probably have said, " but there shall be no 
attainder of treason except during the life of the person 
attainted, which shall work a corruption of blood, or for- 
feiture." But even under this form of sentence, or any 
other form which can be given to it, except as it stands 
in the constitution, the word attainder cannot be used 
in its strictly legal sense, and sustain the hypothesis that 
it is either a limitation upon the penalty for treason or 
upon the time for trying the accused. A second objec- 
tion to this interpretation or construction is, that the con- 
stitution had before provided against the exercise of any 
such authority to attaint a jjerson after his death, so that 
if such be its real meaning, this clause is without value. 
Under the greatest latitude practiced in England, crea- 
ting new treasons, passing bills of attainder, and ex post 
faeto laivSf it never happened that the courts of England 
went through the formality of trying, convicting and 



PROHIBITIONS AND RESTRICTIONS. 291 

denouncing the penalty of the law upon a dead person. 
When the party denounced for treason or other felony 
was dead, it required the omnipotent power of parlia- 
ment to attaint him by bill : and therein is one of the 
advantages, that they could deal with the dead as though 
they were still living. But the constitution of the United 
States had provided against proceedings after the death 
of the accused, by the provision that "No bill of attain- 
der or exjwst facto Imv shall be passed." Therefore it 
was unnecessary to insert the clause under consideration, 
if the end sought was to make impossible the attainting 
of a person after his death. 

The remaining theory, and the one which seems most 
free from objection, is that which interprets this clause 
to be a limitation upon the duration of the corruption 
of blood and forfeiture incident to the condition of 
attainder. The language implies that there is such a 
condition as that of attainder of treason, and that such 
condition has the power to ivorli a corruption of Mood and 
forfeiture. In legal parlance, attainder is the immediate, 
inseparable consequence of the judgment denouncing 
the penalty of the law upon the convicted felon, whether 
by parliament or court. In like parlance, corruption of 
blood and forfeiture are the work or result of attainder, 
and form no part of the penalty. Thus, again, the pen- 
alty of the law enters into, and becomes the judgment 
of the court, whether it extends to life, limb, liberty, or 
property. The attainder resulted from this judgment, 
and the corruption of blood and forfeiture, from the 
attainder. This clause of the constitution, then, is to be 
construed as meaning that no attainder of treason shall 
work corruption of blood or forfeiture, except during the 
life of the person attainted, that is, except for a limited 
period, measured by the life of the felon. Such being 
the interpretation, congress has full x^ower to denounce 
what penalty it sees proper, as the punishment for trea- 
son, extending to life, limb, liberty, or property. It can 
do every thing except extend the period of corruption of 
blood and forfeiture incident to the attainted condition 
of the criminal. It can limit the forfeiture, or take 
it away entirely; it can limit the effects of the cor- 
ruption of blood, or remove it entirely. Under the 
English system, the attainted felon is forever a broken 
link, and can never be the means of connecting heir 
with ancestor. Under the American constitution, this 
broken link continues but a few days. It reaches only 



292 GOVERNMENT. 

from judgment to execution, when the corruption ceases, 
by the termination of the attainted condition, and, 
therefore, the forfeitures cease. It is not to be objected, 
that the forfeiture amounts to nothing, if it continue no 
longer than from judgment to execution. Congress has 
authority to provide by penalty what shall constitute 
the judgment against the traitor, and it need leave 
nothing to be operated upon by forfeiture. According 
to this construction, the full force and eifect is given to 
the language used ; the harshness and injustice of the 
English law on the subject of treason is removed. Con- 
gress has full power to declare, without limitation, the 
punishment of treason, and most clearly the end in- 
tended by this clause is fully secured. By this con- 
struction, the traitor, convicted and sentenced to death, 
becomes attainted, and his attainder works corruption 
of blood and forfeiture, not forever, but for a limited 
period, during the life of the felon. That is, while liv- 
ing, the traitor, under sentence of death, is a broken 
link,; he is stained and blackened by his ascertained 
crime, and is disconnected with ancestor or heir, cut off 
from human sympathy, from human aid, from credit, 
reputation, capacity, and, in anticipation of punishment, 
in law, already dead. 

" No capitation or other direct tax shall be laid, unless 
in proportion to the census or enumeration, hereinbefore 
directed to be taken." The part of the constitution 
here referred to is the third clause of the second section 
of the fifth article, which provides that representatives 
and direct taxes shall be apportioned among the several 
States in the Union, according to their respective num- 
bers. It also provides the means and manner in which 
such numbers shall be ascertained. This subject was 
considered in the tenth chapter^ of this treatise, to which 
reference is made. 

§ 472. No tax or duty shall be laid on articles exported 
from any state. No preference shall be given, by any 
regulation of commerce or revenue, to the ports of one 
state over those of another ; nor shall vessels bound to 
or from one state be obliged to enter, clear, or pay 
duties in another. The object of this prohibition is to 
avoid as far as possible, in equality of burdens imposed 
by the general government upon the people of the dif- 
ferent states. It was the purpose of those instituting 
the general government to treat with impartiality the 

1 Ante, p. 171, 1 337 et seq. 



PROHIBITIONS AND RESTRICTIONS. 293 

people of the nation without respect to the particular 
states in which they chanced to reside. The constitu- 
tion commits the subject of regulating commerce to 
congress; under which general power they have the 
sovereign authority of the nation, to be exercised accord- 
ing to their discretion. Without some restrictions 
imposed upon the exercise of this power, they can do 
what sovereignty itself could do, in its exercise: for the 
terms of the grant are absolute and unqualified, giving 
the regulation and control of commercial intercourse to 
congress. To guard against such an exercise of this 
power as would operate oppressively upon particular 
states, this provision was inserted, prohibiting the levy- 
ing of an export duty upon articles exported from any 
state. This prohibition has been understood generally 
as excluding from congress, authority to levy export 
duties; in-as-much as all exports are from the several 
states. If congress were allowed to lay an export duty 
from any one state, it might unreasonably injure or per- 
haps destroy the staple productions or common articles 
of that state. Thus, some of the states have nothing 
but agricultural products for exportation ; others have 
manufacturing products; others still, derive their re- 
sources mainly from the fisheries. Now a duty laid on 
any of these classes of exports would operate unequally 
upon the people of the different states living by such 
diverse pursuits. Such is the character and extent of 
the constitutional objection to the authority of congress 
to levy export duties. It rests upon the hypothesis that 
the state, as a political institution, has a corporate and 
vested interest in the products of the industry of the peo- 
ple residing within its territorial limits, and that, therefore 
it should be provided for, by guarding against all possi- 
ble encroachments by the nation upon its corporate and 
vested rights and interests. The language of this pro- 
hibition does not necessarily extend beyond denying to 
congress authority to levy export duties upon the pro- 
ducts of a particular state: that is, forbidding congress 
in the levying of duties, to regard state lives. But if 
the ijrohibition is to be extended to the exclusion of all 
power in congress to levy export duties by reason of 
the inequality of the operation of any law which could 
be made, then the same reason would be applicable to the 
levying of import duties: for while it would be true that 
the inhabitants of the several states are generally 
engaged in different pursuits, and produce for market 



294 GOVERNMENT. 



• 



different articles; it is also true, that the inhabitants of 
the several states generally import different articles for 
home consumption ; and investigation will show nearly 
as great a diversity in the local character of imports, as 
there is in the local character of exports. But beside 
this, the local character of exports or imports is not at 
all determined by state lines. Whether a locality shall 
engage in any particular enterprise as that of agricul- 
ture, manufactures, mining, fishing or commerce, does 
not depend upon state lines ; and there exists no reason 
why the particular prohibition under consideration 
should be construed as intended to avoid inequality of 
burden by prohibiting duties upon exports, in any other 
sense than that the exports from a particular state 
should not be made the subject of a local export duty. 
In other words, the spirit of the entire clause is, that 
in the regulation of commerce, congress shall pay no 
heed to state lines; but shall so exercise its powers 
that they shall operate equally upon all citizens, in 
the same manner as though the political division known 
as states, did not exist. 

g 473. As a historical fact the convention which pre- 
pared the draft of the constitution, intended by this 
clause to deny to congress the power to lay export duties. 
This is very clearly manifested in their discussions upon 
,that subject. This prohibition was insisted upon as a 
protection to the staple states, as they were called. 
Thus, General Pinckney was alarmed at the remarks of 
Gouverneur Morris, who had spoken of laying taxes on 
exports, because South Carolina had, in a single year, 
exported to the amount of £600,000 sterling, allot which 
were the fruits of the labor of her blacks.^ Again Mr. 
Pinckney reminded the convention that if the committee 
should fail to insert some security to the Southern States 
against an emancipation of slaves, and taxes on exports, 
he should be bound in duty to vote against their report.^ 
Again Mr. Mason urged the necessity of connecting 
with the power of laying taxes, the prohibition, that no 
tax should be laid on exports. He hoped the IlsTorth- 
ern States did not intend to deny to the Southern, this 
security.^ Mr. Elsworth claimed there were solid reasons 
against congress laying taxes on exports. First, it 
would discourage industry, as taxes on imports would 
discourage luxury. Second, the produce of different 

1 Madison's Debates in Congress, 302 ; 5 Elliott's Debates by Lippencott, 1866. 
» Id., p. 357. 
8 la., p. 432. 



PROHIBITIONS AND RESTRICTIONS. 295 

states is such as to prevent uniformity in such taxes. 
Third, the taxing of exports would engender incurable 
jealousies.^ On the other hand, Mr. King objected to 
the position in which the general government would be 
placed by not allowing it to prohibit the importation of 
slaves, or to tax exports. He inquired, " is this reasona- 
ble ? what are the great objects of the general system ?" 
First, defense against foreign invasion ; secondly, 
against internal sedition. Shall all the states then be 
bound to defend each, and shall each be at liberty to 
introduce a weakness which will render defense more dif- 
ficult ? Shall one part of the United States be bound to 
defend another part, and that other part be at liberty, 
not only to increase its own danger, but to withhold the 
compensation for the burden ? If slaves are to be impor- 
ted shall not the effects produced by their labor supply 
a revenue the better to enable the general govern- 
ment to defend their masters ? There was no such 
inequality and unreasonableness in all this — that the 
people of the northern states could never be reconciled 
to it ; — no candid man could undertake to justify it to 
them.^ The clause as it now stands in the constitution, 
was the result of the discussion and compromises of the 
convention ; and it cannot well be questioned that they 
intended so to frame the draft of this prohibition, as to 
deprive congress of the power to tax exports. But here 
arises a more serious question. The intention of the 
/ramers of the constitution has nothing to do with the 
legal interpretation of the instrument itself. It can- 
not give a meaning to it differing from the natural 
import of the language used. It is not a question, what 
were the views of those who made the draft of the instru- 
ment but what were the views of those who ordained it. 
If the language used by them be such as to render it nec- 
essary to resort to interpretation, then resort may be 
had to such principles of interpretation as well estab- 
lished rules will permit ; but in no case can the motives 
and purposes of those who prepared the draft of the in- 
strument be inquired into, with the view of ascertaining 
the intention of another body who adopted it. If the 
expression, " no tax or duty shall be laid on articles ex- 
ported from any state," require an interpretation other 
than that which the natural import of the language 
used implies, then a resort to the established rules of 
interpretation is required ; and no one is authorized to 

1 Madison's Debates in Congress, p. 45i. 2 Id., p. 391. 



296 GOVERNMENT. 

depart from sucTi rules ; because all instruments are con- 
structed Tvith the view of disclosing- the intention of 
the parties to the same, as it shall appear when inter- 
preted according to such rules. The first principle of 
construction requires that the words used shall be 
understood according to their usual and most known 
signification. If the meaning is still dubious, then resort 
to the context shall next be had, by which is included an 
examination of the preamble ; or of other acts passed 
by the same legislature ; as statutes in ijciri materia are 
to be construed in reference to each other. If the mean- 
ing is still uncertain, then reference to the subject 
matter is next in order ; and the meaning still remaining 
doubtful, the last resort is to the reason and spirit of the 
law ; or the motive which led the legislature to enact 
it.^ Tried by any or all of these modes of ascertaining 
the legal meaning of the above clause, and there is but 
one conclusion ; and that is, that in the exercise of its 
power over commerce, and in the regulation thereof, 
congress should pay no heed to state lines, but should 
so exercise its powers, that they should operate equally 
upon all citizens, in the same manner as they would if 
the political division known as states, did not exist. 
If congress cannot levy export duties without violating 
this principle, then it is prohibited from doing so. 

g 474. The remaining portion of the fifth clause of 
the ninth section has the same end in view, to wit : that 
congress, in the exercise of its power to regulate com- 
merce, should act upon the hypothesis that all are 
members of one government, and that there is but one 
authority in that respect to be obeyed. Thus, " no prefer- 
ence shall be given by any regulation of commerce or 
revenue to the ports of one state over those of another ; 
nor shall vessels bound to or from one state be obliged 
to enter, clear, or pay duties in another." The eftect 
of this prohibition is, that congress, as the national 
legislature, shall make no law touching the subject of 
regulating commerce, which shall not apply with equal 
force to all parts of the nation ; that is, its laws regii- 
lating commerce shall be general, and not local. That 
when a ship has entered, cleared, or paid duties in any 
port of the United States, it has discharged its duty, 
in that respect, to the government, and shall not be 
required to do it again, because it may be bound to or 
from any other state. 

1 1 Bl. Com., 59, CO ; ante p. 12S and notes. 



PROHIBITIONS AND RESTRICTIONS. 297 

S 475. " No money sball be drawn from the treasury 
but in consequence of appropriations made by law ; 
and a regular statement and account of the receipts and 
expenditures of all public money shall be published from 
time to time." The object of this provision is to bring 
under the inspection and authority of congress all 
expenditures of money by the nation, or for and on 
its behalf. The provision requiring an exhibit of the 
receipts and expenditures of all public money from time 
to time, is designed as a sure means of enlightening 
the public ; that they may, through their representa- 
tives, know what appropriations are required ; and the 
means on hand by which such requirements are to be 
met. That is, this provision is based upon the hypothe- 
sis that the law-making power is in the hands of the 
people ; and that all payments of money shall be by 
their authority; and that they shall have the means of 
correct information, that they may act understanding! y 
upon that subject. 

§ 476. " No title of nobility shall be granted by the 
United States." That is, the general government has 
no authority to create classes or class distinctions among 
the people ; — that all its laws shall be enacted upon the 
hypothesis that all men are created equal, and are 
equally entitled at the hands of their government; — 
that government is an institution of the people, created 
for the sole and only purpose of administering their 
authority, to the end that each and all may be secure in 
the enjoyment of civil liberty ; and that equal and 
exact justice maybe administered to all ; and that those 
who are intrusted with the administration of the public 
authority, may not be influenced to betray their trust, or 
to administer under a foreign influence, all persons 
holding an oflice of profit or trust under the general 
government, are prohibited from accepting any present, 
emolument, office or title of any kind whatever from 
any king, prince, or foreign state, without the consent 
of congress.^ 

1 Const. U. S., art, 1, ? 9, cl. 7. 
38 



298 GOYERNMENT. 



GHAPTEE XV. 

OF THE STATES AS POLITICAL OEOANIZATIONS — THEIR 
' OFFICE, DUTIES AND POWEKS. 

§ 477. AccOEDiNG to the American theory, govern- 
ment has no original authority. It is an institution of 
the people, designed onlji^ as an instrument of adminis- 
tration ; and all the power it possesses and can properly 
exercise, is a mere trust for the common good. Govern- 
ment is imposed upon society by the law of necessity. 
Thus, the public authority must be applied to the regu- 
lation and control of the public acts of the individual 
members of society; and also to the regulation and 
control of their private conduct, so far as it affects the 
legal rights of others. But this can be done only 
through the instrumentality of a political organization, 
created for the purpose of exercising such public author- 
ity, and duly authorized to exercise it. Such political 
body becomes a corporation, or an artificial person, hav- 
ing the qualities and attributes, in law, of a person, with 
an understanding, will and power, to be exercised within 
the limits of the authority conferred, called its jurisdic- 
tion ; and for the purposes for wliich it was created and 
endowed, called its administration. Thus, government 
proper is a creature of the public authority. It is an 
instrument of administration, by which alone the ijublic 
authority is to be made known ; or by means of which, 
duriug its continuance, the public authority is to be 
represented. In treating of government, it is necessary 
to remember that it possesses powers to be exercised ; 
but that all such powers are trusts, and can be exercised 
only in accordance with the authority given, and for 
the purposes for which the powers were given. Thus, the 
general and state governments are mere instruments of 
administration, each intrusted with the exercise of cer- 
tain powers, over certain subjects or classes of subjects, 
for specific purposes. In either case, the authority by 
which they administer, as well as the authority adminis- 
tered, by them or either of them, is the authority of the 
public or nation, and not the authority of the govern- 
ment or institution. 

g 478. The government, whether of the state or of 
the nation, is a body corporate and politic, created 
by the people, to be intrusted with the exercise of their 



OF THE STATES. 299 

authority over matters committed by them to its jnris- 
dictiou. Its corporate governmental character consists 
of oflices, to which certain powers and duties are inci- 
dent ; authorizing the incumbent to exercise those 
powers, and requiring him to perform those duties, in 
the manner prescribed, and for the ijurposes for which 
the offices were created. And it is to be remembered 
that the rights possessed, the duties enjoined, and the 
powers conferred, pertain to tlie office alone ; and 
the incumbent is the instrument designated to adminis- 
ter the office, and for the purpose for which it was 
created. It is also to be remembered that there is but 
one source of authority, and hence but one authority, 
to be administered by the government. All govern- 
mental authority must be rooted and grounded in 
sovereignty ; that is, it must have its basis in preroga- 
tive, whether that be found in the monarch or in the 
people. In all forms of government the absolute right 
to command obedience must be found somewhere ; and 
wherever that is found, there is prerogative — there is 
sovereignty. Therefore, under all forms of government, 
and in all gradations of authority, that power only 
which comes from sovereignty expressly or by implica- 
tion, has the right to command obedience — has authority 
to govern. Sovereignty may delegate powers of admin- 
istration, and distribute administrative rights through 
many gradations of office, from the national to the 
municipal government, or even to the family ; and it 
may map out the subjects of jurisdiction, and the limita- 
tions of authority to each particular gradation, but it 
does not by so doing, divide itself, or create diverse 
sovereignties. There is present in every subordinate 
jurisdiction the same authority to administer, and the 
same authority to be administered ; and that is the sov- 
ereignty which created the jurisdiction and authorized 
administration therein. The authority of the humblest 
magistrate in the discharge of his official duties, is as 
absolute as the authority of the king. Belonging to an 
inferior jurisdiction, his action may be subject to review 
by a superior jurisdiction. But until reviewed and 
reversed, it has all the authority committed by sover- 
eignty to that jurisdiction ; that is, it has the authority 
of sovereignty itself in what is officially done within 
the assigned jurisdiction. 

§ 479. Sovereignty is essential to the establishment 
and maintenance of government, whatever may be the 



SOO GOVERNMENT. 

form of its admiDistration. It is as essential to a demo- 
cratic as to a monarcliical government. There must be 
an ultimate authority ; an authority from -which there is 
no appeal ; an authority to command in the last resort ; 
subject to no legal restriction — to no authoritivo stay. 
This sovereignty, as the fountain from which all govern- 
mental authority proceeds, can have no superior — can 
have no equals within its sphere of authority. It must 
be prerogative and alone. Every independent nation 
must, from necessity, i)ossess this sovereignty — this 
prerogative power — as an essential attribute of its 
existence. As a nation, it cannot be inferior in author- 
ity to any other ; and within its limits, it can have no 
equals. The people of the United States as a nation 
possess this absolute sovereignty ; and there is no politi- 
cal power on earth to question the nation's sovereign 
authority to govern itself in such a manner as pleases it. 
But this sovereignty i)ertains to the people as constitu- 
ent elements of the nation, in their original character as 
members of the national society ; and it necessarily 
includes all governmental authority within the limits of 
the nation. For there cannot be two independent sover- 
eignties within the same limits, having jurisdiction over 
the same territory and x^eople. The right of command- 
ing in the last resort can come from but one source, and 
be exercised by but one authority, within the nation. 
The people of the United States constituting but one 
nation, possess this absolute sovereignty to be exercised 
in such a manner, and in respect to such subjects as 
they, in their pleasure, ordain and determine ; and no 
other governmental authority can exist or be adminis- 
tered within the nation, except that which comes, 
expressly or by implication, from the national fountain. 
The principles of democracy are seen in the source, and 
in the administration, of governmental authority. In 
the source, by ascribing to the people in their largest 
civil association, sovereignty. In the administration of 
this authority, by committing to those only who are to 
be affected by it, the rights of administration. Thus, 
in respect to all matters pertaining to the common 
defense and the general welfare of the nation, the 
administration of the public authority is committed to 
the nation. In respect to all matters pertaining to local 
and domestic interests alone, the administration of the 
public authority is committed to the people of the state. 
In respect to all matters pertaining to the interests 



OF THE STATES. 301 

of the municipality, tlie administration of tbe public 
authority is committed to the municipality. Tbe prin- 
ciple to be noticed is this : there is but one source of 
this governmental authority, by -whomsoever and "in 
■whatsoever department administered. And the right to 
administer this authority, like all other political rights, 
is conferred by the same sovereignty. The rights of 
administration, in their origin, must have the same 
source as sovereignty itself. That is, the authority to 
govern may determine by whom its authority shall be 
administered ; at least, it has the rightful authority to 
determine by whom it shall be administered. Thus, if 
any particular class of people are disqualified from the 
exercise of that patriotism, that judgment and dis- 
cretion which is essential to the character of one quali- 
fied to administer the public authority, such class may 
be excluded from the exercise of such powers. The 
very necessity which calls for the existence and main- 
tenance of government, demands the exercise of proper 
authority to determine by whom the public authority 
shall be administered. The right to determine by whom 
governmental authority shall be exercised, pertains to 
sovereignty alone. 

g 480. The administration of governmental authority 
through the instrumentality of the general and state 
governments, furnishes ample illustration of the one 
SOURCE of authority in the sovereignty of the nation ; 
and of the divers modes of administering that author- 
ity, through the instrumentality of these several cor- 
porate institutions, called the general, and the state 
governments. In the institution of the national govern- 
ment, the people of the United States, as members of 
the civil society constituting the one nation, exercised 
their inherent authority to establish for themselves such 
an agency or government for executing their authority 
as they thought proper. In the exercise of this author- 
ity, theij acted in virtue of their potvers as men and not 
as members of any organised government or society. 
They occupied a plane above political constitutions, and 
exercised the authority which makes constitutions 
and founds governments. They exercised the preroga- 
tive authority to say, that a national or general govern- 
ment should be instituted for certain purposes ; and 
should have authority to exercise full powers over a 
certain class of subjects. They determined that for cer- 
tain purposes, the existing state governments should bo 



302 GOVERNMENT. 

continued ; and should be intrusted with the exercise 
of the pubhc authority over such local and domestic 
matters as pertained to their local and domestic inter- 
ests ; and as were not, by them, committed to the 
jurisdiction of the general government. But in deter- 
mining the limits of the general and of the local juris- 
diction of these governments, the people consulted their 
own pleasure and judgment, and exercised their inherent 
authority ; and they defined the several jurisdictions of 
these governments in virtue of their sovereignty alone. 
They took from the states, and conferred upon the gen- 
eral government, the right to exercise authority over 
such classes of subjects as, in their opinion, the safety 
and welfare of the people required them to do. And in 
the constitution which they then ordained and estab- 
lished, they provided for amendments thereof, to be 
made in such a manner as to assert in the most unquali- 
fied form the sovereign authority of the nation to take 
from the states, whenever it should be the pleasure of the 
nation to do so, all administrative authority whatever. 
Thus, congress, whenever two-thirds shall concur in the 
measure, can propose amendments to the constitution, 
which become valid to all intents and purposes as parts 
of the same whenever ratified by the legislatures of 
three-fourths of the states ; or by conventions therein, 
as congress shall determine. In this way, any state 
may be deprived by national authority of all adminis- 
trative rights without the consent of its people ; because 
the authority to do so is in the nation, and there is no 
authority in its particular government or people to 
forbid it. This illustration is sufficient of itself to dem- 
onstrate the subordination of state administration to 
the authority of the nation. It is no answer to this 
view to affirm that the people of the several states 
would never consent to such amendments of the 
national constitution as would deprive them of state 
administration. The people of the several states are 
citizens of the United States, and, as such members of 
the nation, they have authority to assent to such 
amendments; and that sustains the position that the 
authority Is in the nation, and may be exercised when- 
ever they think proper. 

g 481. The questions of governmental administration 
belong to the sovereignty. The authority to institute a 
government, can determine by whom that government 
shall be administered, and those who are intrusted with 



OF THE STATES. 303 

tlie powers of such admiDistration, exercise them in 
virtue of the authority conferred upon them by the 
sovereignty, and not in virtue of any inherent right in 
themselves. Thus, the questions pertaining to the 
administration of the general government were deter- 
mined by the sovereignty which instituted that govern- 
ment. All questions as to what powers should be 
committed to the general government; what should 
be the structure of that government ; in what manner 
and by whom it should be administered; how the 
officers thereof should be selected ; who should be 
authorized to participate in the selection of the same ; 
what should be their duties, powers and responsibilities, 
were determined by the authority which instituted the 
general government ; and the same authority can revise, 
modify or abolish the whole or any part thereof at 
pleasure. The authority which took from the states, 
both as political institutions and as people, any part of 
the subjects of their jurisdiction, and placed the same 
under the jurisdiction of the general government, could, 
had it so pleased, have taken every subject from state 
jurisdiction and have abolished state administration 
entirely. That they did not do it, was a question of 
expediency, and not of authority. The absolute author- 
ity of the inherent sovereignty of the nation underlies 
all other civil authority in the United States, both as to 
the powers to be administered, and the authority by 
which they are to be administered. If the states, as 
political organizations, are allowed to participate in any 
degree in the administration of the general government, 
it is in virtue of the authority conferred by the consti- 
tution of the United States, and not in virtue of any 
authority inherent in them. Thus, the state legislatures 
may apportion among the citizens of their respective 
jurisdictions, the districts from which their members to 
to the house of representatives in congress shall be 
elected ; but they can do it only in virtue of the author- 
ity conferred by the constitution, and that privilege is 
liable to be taken from them, at the pleasure of congress. 
The state legislatures can elect, each two senators to 
represent them in the United States senate ; but they 
do so because authorized by the national constitution. 
The same authority which authorized the legislature to 
select these senators, could have given the authority 
to the people at large ; or could have withheld it alto- 
gether. The same is true of all power conferred upon 



304 GOVERNMENT. 

the states to participate in the national administration. 
That power has its authority in national, not state sov- 
ereignty, and is to be exercised as a right or privilege 
conferred, not as a right or privilege inherent in the 
state ; and it is to be exercised as a trust, and not as 
possessed in the right of him or it which administers. 

g 482. The people, in the exercise of their inherent 
sovereignty in the institution and endowment of the 
general government, recognized the continued existence 
and use of state governments as instruments of internal 
administration; but they recognized them as subordi- 
nated to the authority of the nation; and they used 
them oply as thus subordinated. They parceled out the 
subjects of administration between the general and 
state governments, by enumerating what should belong 
to the general, and declaring that the rest should remain 
with the state administrations. Thus, the states then 
existing virtually took their future or continued exist- 
ence and authority at the hands of the nation; and they 
became instruments of internal administration of such 
powers as were assigned to them by national sover- 
eignty ; and they now hold such powers in trust merely 
at the pleasure of the nation ; for whenever it shall be 
the pleasure of the people so to amend their national 
constitution as to withdraw from the states any portion 
of their present powers, they will be obliged to submit 
to such determination. This subordination of state 
institutions to the sovereignty of the nation is more 
clearly apparent in the institution of new states. Since 
the assertion of national sovereignty in the United 
States over the subjects of civil administration, by the 
institution of the national government, some twenty- 
three new states have been created within the national 
limits. These states have been erected within territories 
of the United States, portions of which have been 
acquired by the nation since its civil organization as a 
government, but all of which was subject to the abso- 
lute and unrestricted jurisdiction of the United States 
in all matters pertaining to civil administration prior to 
the erection of these states. While remaining territo- 
ries, no civil or criminal jurisdiction could be exercised 
therein except by the authority of congress, as the 
national legislature. This authority of congress over 
the territories is usually based upon the second clause 
of the third section of the fourth article of the consti- 
tution, which provides that congress shall have power 



OF THE STATES. S05 

to dispose of, and make all needful rules and regulations 
respecting the territory, or other property belougiug to 
the Uuited States. But, aside from the authority con- 
tained in this clause, the power to exercise jurisdiction 
over, and provide for the government of any territories 
which the nation might acquire, would necessarily 
inhere in congress, as being the body to which the exer- 
cise of all legislative authority over national subjects is 
committed. If, as an incident of sovereignty, the nation 
has authority to acquire such contiguous territory as its 
safety and welfare demands ; and if such authority is 
committed to the proper departments of the general 
government, to be exercised in its sound discretion — as 
it undoubtedly is under the war powers — then the 
acquisition of such territory draws with it, not only 
the property therein and the right of possession thereof, 
but likewise the sovereignty over the same; that is, the 
authority to extend its jurisdiction both civil aiid crimi- 
nal, over such territory. To hold the converse of this 
would be an absurdity. For if the nation, through the 
agency of the general government, can acquire territory 
from any foreign power, it must either acquire the right 
of exercising the sovereignty of the nation over the 
same, or that right remains in the foreign power. Thus, 
when the territories of New Mexico and California were 
acquired by the United States from Mexico, the right of 
sovereignty, or to exercise sovereign authority over 
the same, was incident to the transfer, and vested in the 
nation with the title to such territory. To hold the con- 
trary would leave the right of sovereignty in Mexico, 
which cannot be admitted. The sovereignty over such 
territory vesting in the United States, no one can exer- 
cise jurisdiction there not derived from, or recognized 
by the United States. That is, the authority of the 
nation over such territory is absolute, unless qualified 
by the terms of the grant. No government can be 
established there but by the authority of the nation, and 
upon such terms and conditions as the nation in its 
sovereignty sees fit to impose. Such has been the 
authority exercised by the nation in respect to all its 
territories. The people of any territory desiring to 
become a state corporation for purposes of civil admin- 
istration, have never been supposed to be able to vest 
themselves with the rights, powers and duties of a state 
government ; nor have they been supposed to be able 
to exercise, in their own right, any public authority. 

39 



306 GOVERNMENT. 

Whatever political power has been exercised by them as 
inhabitants of the territory, has been under the enabling 
power of the nation as conferred by the legislation of 
congress. It matters not what may be the number and 
character of the inhabitants of a territory ; or what may 
be their qualifications to administer civil authority, as 
inhabitants of a territory of the United States, they 
have not, nor can they acquire any political authority 
except through the enabling authority of the nation 
through congress. All territorial legislation derives its 
sanction from the sovereignty of the nation ; all terri- 
torial administration derives its authority from the same 
source. Whenever the inhabitants of a territory desire 
to be enfranchised with the political powers and rights 
of a state, that they may be authorized to administer in 
respect to their own local and domestic matters, they 
are obliged to take their charter — state constitution — 
upon such terms and conditions as congress, exercising 
the legislative authority of the nation, i)rescribes. The 
people of the territory may draft the form of their 
proposed constitution — may submit the same to the 
approval of the inhabitants — and they may approve 
of the same ; it is still without political life or power 
until the sovereign authority of the nation by its incor- 
porating and enfranchising act, gives it political exist- 
ence and administrative authority. Colorado has been 
asking enfranchisement, Nebraska has been asking the 
same, but the charters presented by them did not please 
congress, and they prescribed the terms to which they 
must accede before they could be incorporated and 
enfranchised as political states, and become vested with 
political powers as state citizens. 

% 483. To create a new state within the union, requires 
the exercise of national authority, incorporating the 
inhabitants within a certain territory over which the 
United States has exclusive authority, and the general 
government has exclusive jurisdiction, into a body 
politic ; thereby vesting them with such powers as by 
the national constitution are confided to state, adminis- 
trative authority, subject, nevertheless, to such further 
inhibitions and restrictions as the terms of its own con- 
stitution or charter may impose. ^ By this national act 
of incorporation, the political state is created ; and the 
franchise of state citizenship is conferred ; and the cor- 
poration known as a state becomes, in the hands of its 

J See Appendix : admission of states. 



OF THE STATES. 807 

citizens, an instrument for exercising the autliority of 
the nation in respect to all subjects committed to state 
jurisdiction. The effect of this act of incorporation is 
twofold. It commits to the inhabitants of such territory 
the right exercised by citizens of the United States, 
residing beyond its limits, to participate in the adminis- 
tration of governmental authority in matters purely 
local and domestic within its limits ; and consequently 
it confers upon such inhabitants the right to exercise 
exclusive jurisdiction in all matters of administration 
over such subjects. Before such state was created, the 
inhabitants thereof had no administrative authority ; by 
such political incorporation, the inhabitants have exclu- 
sive authority politically, over their own local and 
domestic interests ; and a right to participate in the 
administration of the public authority touching matters 
of a national character, through the instrumentality of 
the state and general government, in the manner pre- 
scribed by the'constitution of the United States. By 
the act of political enfranchisement creating a new 
state, the inhabitants of the territory included within 
the limits of the new state are invested with adminis- 
trative privileges merely. Their rights civilly, were the 
same while they were mere inhabitants of the unorgan- 
ized territory. As American citizens they were entitled 
to that protection in the exercises of their civil rights, 
which the government could extend to them in their 
remoteness from its administrative power. Their right 
to participate in the administration of the public 
authority, through the instrumentality of the general 
government, so far as they possessed the requisite quali- 
fications, might have been ijerfect, provided they had 
placed themselves within the reach of means by which 
that participation could be effected. But so long as 
they resided outside the corporate limits of a state those 
means could not be made available ; and they were 
necessarily denied the exercise of such rights. There- 
fore, by the act of state incorporation, the inhabitants 
acquire the right to participate in the general adminis- 
tration ; and, by such act, the means of exercising such 
power is brought within their reach. 

§484. What, then, constitutes a state under the con- 
stitution, and within the limits of the United States? 
By the authority of an act of congress, the people 
inhabiting the territory included within the limits of 
the proposed state» are incorporated into a political 



g08 GOVERNMEKT. 

society for the purpose of exercising governmental 
powers over matters of a local and domestic character, 
within the limits of the described territory; subject, 
however, to such limitations and prohibitions as the 
constitution of the United States, and their own consti- 
tution prescribe. The effect of this incorporating and 
enfranchising act of the nation is, to institute a local 
government, to be intrusted with the exercise of sover- 
eign authority over such subjects as are committed to 
its jurisdiction ; which authority is to be administered 
by the citizens of such local territory, in virtue of the 
franchise conferred upon them by the act creating them 
a political body. Beside, being citizens of the United 
States, such state citizens are likewise invested with 
such other political franchises as pertain to other citizens 
of the United States, under the provisions of the 
national constitution applicable to state citizens. There- 
fore, a state government as a political society in the 
United States, may be defined to be a corporation of 
officers, instituted by the nation, to provide for the local 
administration of governmental authority in respect to 
local matters, which authority is to be exercised by the 
citizens or inhabitants of the territory over which its 
jurisdiction is extended. A state, as a portion of the 
national domain, is that territory over which the local 
jurisdiction of the political corporation known as a 
state, extends. A state, as embracing a portion of the 
citizens of the United States, consists of those citizens 
residing within the territorial limits of the political state 
who are so enfranchised as to be permitted to participate 
in the administration of the public authority committed 
to the local jurisdiction of such state, and through its 
constitutional agency, to participate in the administra- 
tion of the general government. Thus, a state, as a 
political body or corporation, has no inherent or original 
sovereignty. It is a mere institution or political instru- 
ment, to be used as a means of exercising authority ; 
not as a sovereign imparting authority. Sovereignty is 
present giving life and power to the institution ; lend- 
ing authority to the exercise of its legitimate powers ; 
but it is not the sovereignty of the institution ; nor of 
the people of the state to whom the exercise of local 
authority is committed ; but it is that one undivided 
sovereignty of the nation which created the state and 
enfranchised its citizens, and set the boundaries to their 
powers of administration. It is that sovereignty which 



OF THE STATES. 309 

alone can institute governments ; can endow them with, 
power to make and execute laws, and can compel obedi- 
ence thereto against all opposing authority. 

g 485. The sovereignty which institutes state govern- 
ments in the United States, fixes the limits of their 
jurisdiction and of their administrative authority. While 
it creates a state as a corporation, and confers certain 
powers to be exercised by it, it also imposes restrictions 
upon them, which it could not do, were the states, as 
l)olitical.institutions, sovereign. The people of the United 
States in the institution of the general government, 
designed it as the instrument by means of which the 
interests of the people as a nation could be protected and 
preserved. In providing for the institution of the state 
governments, they were designed to be merely local in 
their powers ; and were restricted in the administration 
of their authority to those interests which were of a 
local character. For this reason they are confined 
entirely to affairs among the inhabitants thereof, and to 
interests within their respective limits. Hence the pro- 
hibition, " No state shall enter into any treaty, alliance, 
or confederation ; grant letters of marque and reprisal." 
"JSTo state shall, without the consent of congress, lay 
any duty of tonnage; keep troops or ships of war in 
time of peace; enter into any agreement or compact 
with another state, or with a foreign power ; or engage 
in war, unless actually invaded, or in such imminent 
danger as will admit of no delay." ^ It is important to 
remember that the authority conferred is exclusively of 
an administrative character, to be exercised as a trust, 
for the benefit of the inhabitants of the state. The 
authority administered by the state is not its own, but 
the authority of the nation ; and while the state keeps 
within the limits of its prescribed authority to adminis- 
ter, its action is as valid and binding as that of the 
general government, or of sovereignty itself. The dis- 
tinction between the authority administered by the 
general government and that administered by the states, 
extends only to the subjects of administration. The 
general government has to do Avith and for the United 
States as a nation ; and exercises its authority in pro- 
viding for the safety and welfare of the nation in respect 
to other powers. In its internal administration, it 
has to do with all the people of the nation j in respect 

1 Art. 1, 1 10, Const. U. S. 



SIO GOVERNMENT. 

to those rights and interests for which the local govern^ 
ments are not competent to provide. 

g 486, There is also this distinction between the 
administrative authority of the general government and 
that of the states. The jurisdiction of the general 
government extends over every portion of territory 
within the limits of the nation, and its administrative 
authority is exclusive within such limits, until a new 
jurisdiction is created by its own action or permission, by 
which administrative authority is conferred upon others. 
Thus, the general government extends its jurisdiction 
under the constitution, to every inch of territor}^ included 
within the several states, and within all the territories 
of the United States. This brings every inhabitant of 
the state and of the territories under the jurisdiction 
of its administrative authority. The general government, 
therefore, is as omnipresent throughout the nation as is 
sovereignty itself. Every citizen of this government 
is, therefore, in the eye of the law, politically present 
by the authority of this government in all the states 
and territories of the union. A national citizen exer- 
cising administrative authority, has no other locality 
than the nation. The authority by which he is repre- 
sented in the national government, applies to every part 
of the national domain, and reaches to every subject of 
national administration. The representative in con- 
gress from the humblest district in the humblest state, 
legislates as well for every part of the nation as for that 
which he especially represents. The senators from IsTew 
York legislate for Louisiana, and the senators from 
Louisiana do the same for New York. The national 
citizen residing in Delaware has as much governmental 
authority over questions of national interest belonging 
to New York, as has a national citizen residing in New 
York. It is important to remember that national admin- 
istrative authority knows no state lines. Until a state 
government is instituted for the inhabitants of a par- 
ticular territory, the administrative authority of the 
general government over the citizens or inhabitants of 
such territory, is necessarily exclusive. It extends as 
well to those interests of a local and domestic character, 
as to those which extend alike to all the citizens of the 
nation. Under such circumstances, every citizen of 
the United States has authority, through his representa- 
tive in congress, to administer in respect to the local 
and domestic interests of such territory. But whenever 



OF THE STATES. g^l 

such territory is erected into a state, by the incorpo- 
ratiug and enfranchisiug act of congress, then such 
admiuistrative authority over the local and domestic 
altairs ot the inhabitants ceases in all except those to 
whom the exercise of such authority has been com- 
mitted, showing this change. Congress as the repre- 
sentative of the nation, and of every member thereof 
has committed to the inhabitants of the particular terri- 
tory the exercise of that authority over their local and 
domestic interests, which before was exercised by the 
nation at large ; so that by the institution of the new 
state, the inhabitants thereof acquire, and the nation at 
large parts with, this administrative authority. But it 
IS to be observed that the nation parts only with the 
exercise of so much administrative authority as pertains 
to the local jurisdiction of the state. In respect to all 
matters ot a general or national character, pertaining 
to such territory or to the inhabitants thereof, the natioS 
parts with nothing; but in the eye of the law is per- 
petually and potentially present to assert its authority 
and compel obedience. 

S 487. Under the national constitution the general 
government is intrusted with all governmental powers 
necessary and proper for the common defense and o<en- 
eral welfare of the nation ; and among the powers to be 
exercised by it, is that of governing the territories, and 
of admitting new states into the Union, supervising 
the form and character of their governments. In other 
words, the general government possesses, and can right- 
fully exercise all governmental authority within the 
limits of the nation, except so far as such authoritv is 
committed to the states. But state authority is limited 
to the exercise of such powers as are confined in their 
operation to interests of a local and domestic character • 
that IS, to such interests as do not extend into other 
jurisdictions, and are not subject to other administrative 
authority. The authority of a state citizen as such 
does not extend beyond the right to participate in the 
adinimstration of the state government as applied to 
rights and interests within the state. He has no politi- 
cal authority or power beyond such limits. Laws 
enacted by the state legislature are confined in their 
legal operation to persons and subjects within their local 
jurisdiction. In any other state or territory, they have 
no force and can create no legal obligation. As state 
governments, they can afford citizens no protection 



812 GOVERNMENT. 

beyond the lines whicli bound their respective territories. 
Their authority or powers cannot be extended by com- 
ity, or compacts, for they have no capacity to make 
them.^ But the citizens of the states are likewise citi- 
zens of the nation ; and as national citizens they have 
authority co-extensive with the nation. As national 
citizens they are members of a political society possess- 
ing inherent and absolute sovereignty; from which their 
rights and authority as state citizens are derived ; and 
to which they are subordinated. Prior to the American 
revolution, they had such rights of government as their 
colonial charters gave them ; but as subjects of the Brit- 
ish crown, the royal prerogative extended over them, and 
they acknowledged its rightful authority. When driven 
by oppression to unite in resisting the tyranny of the 
British government, and finally, in proclaiming for them- 
selves independence, they then acknowledged no civil 
authority above them. Each colony had its own gov- 
ernment independent of the others ; and consequently 
there was no organized government with authority to 
supervise them. Although by their union for the pur- 
poses of protection and independence they became a 
national society, and were entitled to a national govern- 
ment to execute their united authority, they did not 
organize such government until compelled bj^ necessity 
to do so to preserve their existence. During the continu- 
ance of their struggle with Great Britain, their common 
interest and common danger supplied, in a great degree, 
this demand for a national government. The danger to 
be provided against, took the place of governmental 
authority to compel the necessary action. But when 
these dangers were past, and peace had become estab- 
lished, want of national authority became alarmingly 
apparent, until it became manifest to all, that the nation 
could not be preserved without an organized government 
to administer its authority. The presence of this neces- 
sity compelled the people of all the states to unite in 
their national character, for the purpose of instituting a 
national government ; and the result of their union was 
the establishment of the national constitution, and the 
consequent institution of the general government. 

§ 488. The inevitable consequence of establishing a 
national government extending its jurisdiction, that it 
might execute national authority, throughout the nation, 
was the necessary subordination of the state govern- 

. I Art. 1, § 10, Const. U. S. 



OF THE STATES. 81^ 

ments to such authority. The nation alone couhl be sov- 
ereign within the national domain ; and it could admit 
of no equal authority therein. These inchoate states 
had never been sovereign in any national sense. When, 
by severing the political ties which bad bound them to 
Great Britain, they ceased to be connected witli other 
nations, they had no other ties to connect them with 
nationality, except their union as members of the 
American nation. None of the separate states were 
recognized as a nation by any government, not even by 
themselves. They had no claim to independent nation- 
ality, either by nature, necessity or acquirement. None 
of them could, from their situation or their numbers, 
have established or maintained an independent national 
existence. Consequently, they never had, nor could they 
ever have, t\iQ irrerogative potvers and rights of sovereignty. 
They had independence, until a government was organ- 
ized to supervise and control their authority in all 
matters pertaining to independent nationality. When 
that occurred, and the inhabitants of these states became 
citizens of a sovereign and independent nation, and a 
government was instituted by the people to exercise 
their sovereign authorit5% then, necessarily, their local 
institutions became subordinated, and the partial author- 
ity of the citizens of the state, became subordinated to 
the sovereign authority of the citizens of the nation. In 
this manner, and for these reasons, the original thirteen 
states occupy, necessarily, the same status as the new 
states which have been created since the institution of 
the general government. These states, as political insti- 
tutions, take their inferior position within the limits of 
the nation, from necessity : because, in the nature 
of things, they cannot occupy a higher one, while the 
nation is sovereign and independent. Their position is 
incident to the office they have to perform. Their duties 
and powers are necessarily local, and they are limited 
accordingly. Until the interests and rights of the Ibwn 
become superior or equal to the interests and rights of 
the state, the like interests of the state, cannot become 
superior or equal to the rights,' interests and powers of 
the nation. The argument of Mr. Jefferson in demand- 
ing possession of the mouth of the Mississippi for the 
use and benefit of the United States, because, from its 
position in reference to the nation, no other authority 
could be permitted to possess it, is based upon the 
hvpothesis, that the rights of the nation are superior to 

40 



314 GOVERNMENT. 

those of any local or state character. If France, as a 
nation, could not be permitted to own and occupy New 
Orleans, as against the United States, much less could 
the state of Louisiana possess and exercise rights and 
authority over that territory superior to the rights 
and authority of the United States over the same. It is 
based upon that principle in nature, which requires the 
necessities of the special and particuhir to yield to 
the lilie necessities of the universal. 

% 489. This subordinated position and office of the 
state or local administration, applies as well to the 
original thirteen states, as to tliose which have been 
established since the organization of the national gov- 
ernment. This subordinated position and ofiBce of state 
administration is inevitable. Sovereignty can admit of 
no superior, or equal, within its jurisdiction. If state 
citizenship differs from national citizenship either in its 
character, or the source of its authority, it must inevita- 
bly be subordinated thereto. When the people of the 
United States, having established their nationality, 
proceeded to organize a government as a means of 
asserting their sovereign authority as a nation through- 
out the national domain, that act of itself necessarily 
assigned to these local governments their several juris- 
dictions; — placed the boundaries of their authority as 
mere administrative institutions, beyond which they 
could not pass. The people of the original thirteen 
states, in the institution of the general government, 
acted in virtue of their inherent authority as national 
citizens, and not in virtue of any authority conferred 
by the state governments. The powers conferred upon 
the general government; were derived from the people 
of the nation as possessing original and inherent sov- 
ereignty, and not from them as members of these local 
institutions. ^ 

§ 490. Since the state citizen as such, derives his 
power to ijarticipate in the administration of govern- 
mental authority, through the enabling and enfranchising 
act of the national legislature, his rights of adminis- 
tration as such state citizen, are derivative, and not 
original and inherent. His right to administer, or to 
participate in the administration of governmental 
authority in respect to matters of state interests, origi- 
nated in the institution and organization of the state 
government. It is a political right derived from the 

1 See Appendix, p. 



OF THE STATES. 315 

prerogative powers of sovereignty itself ; and is not a 
natural or inherent right of the individual. It is 
a right conferred by sovereignty, by some act of enfran- 
chisement, upon certain classes of citizens or subjects, 
to be exercised in a manner prescribed. When a state, 
as a political corporation, is created by an act of 
national sovereignty, and the inhabitants thereof are 
created state citizens, with powers to administer gov- 
ernmental authority over matters purely local and 
domestic, their political rights attach as a franchise; 
to be held and exercised by them, in trust for the public 
welfare. But the state citizen acquires no property in 
such franchise ; nor can he have any vested interest in 
the same. He acquires it as a trust ; and the authority 
creating the trust, can revoke it whenever the public 
welfare demands that it should be revoked. Thus, those 
intrusted with the exercise of governmental authority 
can lawfully determine to what class or classes these 
political rights shall extend; who may, and who may not, 
exercise them ; for what causes they shall be forfeited ; 
and upon what conditions they may be restored. This 
could not be, if political rights were natural and inherent, 
or if the citizen could acquire a vested interest in the 
same. It follows, therefore, that the franchises con- 
ferred by the institution of a state government may be 
forfeited by the citizens of the state, and all political 
rights and powers possessd by them may cease to be 
theirs. The principle of forfeiture is as applicable to 
'political, as to other franchises. When the rights and 
powers conferred for a particular purpose are perverted 
and abused ; when those franchises which were conferred 
as a trust to be exercised for the public good, become 
perverted to instruments of mischief, it is the duty of 
those exercising the prerogative powers of sovereignty, 
to reclaim the trust, and disfranchise the unworthy or 
criminal party perverting or abusing it. When a class of 
citizens, who have been enfranchised with political rights 
to aid in the maintenance and administration of govern- 
mental authority, for the safety and well-being of society, 
band themselves together and so use the franchise as to 
subvert and destroy society, there can be no question, 
as to the right and duty of those charged with the 
exercise of the prerogative powers of sovereignty, to 
disarm such guilty citizens by disfranchising them. 
When the citizens of a state repudiate the charter or 
constitution under which they have been created a polit- 



816 GOVERNMENT. 

ical corporation, and have been endowed with political 
rights; and renonnee their political connection with, and 
allegiance to, the anthorit}^ which gave them political 
existence ; and levy war upon it that they may over- 
throw and destroy it, and establish themselves upon its 
ruins, there can be no question tjbat their political 
franchises are forfeited, and they are left at the mercy 
of that sovereignty which they attempted, but failed, 
to destroy. 

^ 491. Thus, in the recent rebellion, certain states 
assumed to renounce their political connection with, and 
allegiance to, the people and government of the United 
States ; recalled their senators and representatives from 
the congress of the union ; threw up their constitutions 
or charters under which they existed and exercised 
political rights in respect to state and national interests; 
adopted Qther constitutions upon their own assumed 
authority; expelled by force from their limits, all those 
who attempted to exercise the authority of the United 
States therein ; tore down the flag of the union, and 
hoisted the flag of rebellion in its place; made war 
upon the nation ; and exerted their utmost power to 
destroy it ; claimed, and were recognized as having 
belligerent rights ; carried on the war for four years, 
until overcome and subdued by the power of the nation 
they renounced and warred against ; and only laid down 
their arms because they were conquered and utterly 
subdued. Under such circumstances, there remains no 
question, even in their own minds, that all political rights 
and franchises conferred upon them by the act incorpo- 
rating them into political states, and endowing them 
with political franchises, are forfeited. The treason 
committed by them against the authority of the nation, 
is, in its nature, political death. The rights of citizen- 
ship and of the hostile rebel, cannot co-exist in the same 
individual. The real existence of the one character 
necessarily extinguishes the other. It would be a species 
of insanity and madness, of which no government could 
ever be presumed to be afflicted, to continue in the 
traitor, the right to exercise the franchise pertaining to 
loyal citizens. It would be such an assumption, as even 
treason itself never had the eftrontery to demand. 

g 492. The condition of a state, poUticaUy, which has 
thus repudiated its allegiance to the authority of the 
nation, is necessarily one of political death. Its exist- 
ence and life consist in the authority conferred upon its 



OF THE STATES. 317 

inhabitants to exercise certain political rights, by means 
of which they can administer all necessary govern- 
mental authority over their own local and domestic 
interests, and can participate in the administration of 
the national government by the means afforded them 
under their state constitution. When, therefore, they 
have repudiated their charter; have destroyed the 
means by which they could possess and exercise politi- 
cal rights under the national constitution ; have put 
off the character of loyalty and put on that of rebel- 
lion, there remains no foundation upon which a loyal 
political state can exist. It must cease with the ces- 
sation of those conditions out of which it arose, and 
by means of which alone it could continue. Much 
has been said about states with political functions 
and rights suspended ; as though a corporation could 
continue, divested of all its franchises and powers ; 
as though that which constitutes the legal artificial 
person could be stripped away, and leave a legal per- 
sonality remaining. Such language may be applied to 
a natural person, who has been invested with political 
rights and franchises ; but it cannot properly be applied 
to a corporation, where its personality consists in the 
possession of such rights and franchises. A political 
state which ceases to possess the rights and franchises 
of a political state, ceases to be a state. The very term 
"state" is applied to these corporate rights and fran- 
chises, as representing the legal condition of a body of 
people possessing and exercising them. Its name 
implies the political state or condition of the people 
constituting the enfranchised body. To destroy that 
Ijolitical condition of the x>eople, is to destroy the state. 
% 493. The state of Louisiana was created by that 
act of sovereignty whch gave the people thereof a legal 
and an authoritative constitution of government. Prior 
to that act of the nation through its legislative body, 
the inhabitants of the Louisiana territory had no political 
existence or rights either as a state, or as a portion of the 
national family. The sovereignty of the nation extended 
over the i)ersons, and the territory of Louisiana ; but 
the inhabitants thereof had neither been incorporated 
or enfranchised, until by the act of congress they were 
created a political state, and thereby vested with the 
rights and franchises of state citizens, under the national 
constitution. After the acquisition of that territory by 
the United States, the sovereign authority of the nation 



818 GOVERNMENT. 

for all civil and political purposes over siicti territory 
was absolute. The people of the nation, through con- 
gress as their legislature, had plenary authority over all 
matters of internal administration within such territory. 
The people of the nation had purchased the same with 
their common treasure, and they were bound to defend 
it with their common blood. The territory of Louisiana 
had been incorporated into the national domain for the 
purposes of national welfare and security, to the end 
that the authority of the nation over it might be abso- 
lute and unquestioned. When the political state of 
Louisiana was created, and the inhabitants thereof 
were enfranchised, the nation yielded nothing of its 
sovereignty over the inhabitants, or the territory thereof. 
The only effect was to extend to the citizens of such 
territory the political franchises and rights incident to 
state citizenship under the national constitution. As 
a state government politically, it consisted of the offices, 
rights and franchises conferred upon the inhabitants of 
that territory, with such limitations and restrictions as 
their own, and the national constitution, imposed. 
These political franchises conferred upon certain classes 
of the inhabitants of such territory, the sole right to 
administer in respect to public interests of a local and 
domestic character ; to participate in the manner pre- 
scribed, in the administration of the national govern- 
ment, and to be protected in the exercise and enjoyment 
of their civil liberty as citizens of the United States. But 
all these franchises and privileges were conferred to be 
held and exercised in loyalty to the authority of the 
nation. Every officer of the state in the exercise of 
the duties and powers of his office, was required to take 
an oath to support the constitution and government of 
the United States in the discharge of his official duties 
and trusts. When, therefore, the people of the state of 
Louisiana overthrew the political charter under which 
they had derived their political franchises and rights ; 
when they substituted another and foreign one in its 
place, and raised their arms in rebellion against the 
nation, their political existence as a state, and their polit- 
ical rights as state citizens under the constitution of the 
United States, ceased ; and the administrative authority 
of the nation necessarily became absolute and unquali- 
fied over the people and territory of Louisiana. 

g •194. This view has been objected to by some as 
being equivalent to admitting that the people of a state 



OF THE STATES. §19 

have authority to dissolve the union. But this objec- 
tion has no valid or rational existence. The union 
constituting the nation, consists in the political union of 
the people of the states, and not in the political union 
of the states themselves. The nation remains the same 
politically and authoritatively, whether there are thir- 
teen or thirty-six political institutions within its borders 
known as states ; whether there are three millions or 
thirty-three millions of citizens. The sovereignty of the 
nation, or the prerogative powers by which it estab- 
lishes and administers government, does not depend 
upon the existence of any particular number or proi)or- 
tion of political states within its territorial domain, or 
upon the political status of any number or proportion 
of its inhabitants. The public authority of the nation 
exercised in the manner prescribed in the organic and 
fundamental act of government, is prerogative, whether 
participated in by the inhabitants of the rebellious states 
or not. That power alone, which can so divide and 
distract the people as to overthrow and destroy their 
political unity as a nation, can dissolve the union. 
A political state may be created, and it may cease to 
be, without affecting the status of the nation. Its crea- 
tion adds nothing to, and its death can take nothing 
from, national existence or sovereignty. 

S 495. To secede fi-om the union in the sense of 
excluding the sovereign authority of the nation over 
any portion of the people or territory of the United 
States, while the nation maintains its political existence, 
and has poAver to assert and maintain its authority, is 
a simple impossibility. When the people of the United 
States constituting the nation, consent to a separation 
of a portion of its territory from the national domain, 
or of a portion of its citizens from the body of the 
nation, then such separation can legally take place, 
by such voluntary consent. But until such assent is 
obtained, there is no other means left except by revolu- 
tion. By the constitution of the nation, each national 
citizen is politically present in every part of the 
national domain, and has a voice through his repre- 
sentative, in determining by what laws each national 
citizen shall be governed. As a national citizen repre- 
sented in the national legislature, he speaks and acts 
for all sections of the nation with equal authority. He 
has a right to claim the protection of the national gov- 
ernment, and to enjoy the privileges of citizenship in 



820 GOVERNMENT. 

any and every state in the union ; and lie cannot be 
depriv^ed of these rights and privileges except by for- 
feiture, consent, or force. Therefore, the inhabitants 
of one state have no authority to assume the political 
right to deprive the inhabitants of another state of 
the benefits of national citizenship in any state within 
the union. 

S 496. Since a state within the union is a jjolitical 
corporation created by national authority for the purpose 
of local administration, and as a means of providing 
for the participation of its citizens in the administra- 
tion of the general government, it follows, that neither 
as people or as a political corporation, can they possess 
authority to withdraw from, or place themselves in 
rebellion against, the union. The people of the state, 
in their individual and in their corporate character, may 
levy war against the nation, and may seek to overthrow 
its authority; but in doing so, they act without author- 
ity, and incur the penal and political consequences 
of treason. Thus, when the people incorporated as a 
state, resolve to separate themselves and their territory 
from the nation, and actually levy war upon it to 
accomplish such purpose, using all their political and 
physical resources to that end, their political existence 
and authority in the union must cease; — not in virtue 
of their authority over the nation ; but in virtue of the 
authority of the nation over them; — not in virtue of 
their authority to take themselves away from the juris- 
diction of the nation ; but in virtue of the authority of 
the nation to exercise its jurisdiction over them, to pro- 
claim the forfeiture and denounce the punishment due 
to their crimes. It is no answer to say, they had no 
authority to secede, and, therefore, they could not 
change the political status of the state or people. An 
individual has no authority to secede, or change his 
status ; nevertheless, an individual can commit treason 
without authority; and that of itself changes Jiis status. 
He can deprive the government of no right or power 
over him ; but he can deprive himself of all authority 
and all rights under the government. While he can 
cause no forfeiture on the part of the government, he 
can forfeit everything on his own part. It is the same 
with the people of a state as a political corporation ; 
while they cannot deprive the nation of the right to 
exercise national authority over them and their territory, 
they can, by their treason, forfeit all political rights. 



OF THE STATES. 32X 

powers and franchises. But by siicli forfeiture the 
nation loses nothing political ; they lose everything. 

% 497. While the states, as political corporations, are 
not constituent elements of the nation, and do not in their 
creation or extinction, affect the political status of the 
nation, yet they have their value as instruments of 
administration. As a state, each is the political equal 
of the other ; and under the national constitution there 
can be no political inequality between them. Each 
state corporation is created by the same authority, for 
the same purpose, and is intrusted with the exercise of the 
same duties and powers. If South Carolina is to-day a 
state, politically, under the national constitution, she 
possesses the essential incidents of stateship. Her citi- 
zens necessarily possess the rights and privileges incident 
to such citizenship in other states. For the citizens of 
each state are entitled to all the privileges and immu- 
nities of our citizens of the several states,^ and there is 
no authority under the constitution to withhold from 
them such rights and privileges. Being a state within 
the meaning of the constitution, congress can impose 
no conditions to her right of representation or partici- 
pation in the general government. The right of congress 
thus to interfere with the liberties of citizens in the 
exercise of their political franchises, while the state is in 
true political relation under the constitution, cannot be 
admitted. When the people of a particular territory 
have been incorporated and enfranchised by the nation, 
so as to become politically a state under the coiistitu- 
tion, they cannot be subjected to other conditions 
unknown to the constitution, except in a manner pre- 
sented thereby. When the people are once incorporated 
and enfranchised as a state, under the national consti- 
tution, their political rights and privileges are determined 
beyond the power of congress to disturb them. What 
the citizen then claims, he demands as his right, which 
cannot legally be denied to him ; a right secured by the 
faith and power of the nation. It therefore becomes a 
question of grave moment, is South Carolina politically 
a state within the meaning of the constitution ? Are 
her citizens entitled to the guarantees of the national 
constitution ? Have they the same political status as the 
citizens of the loyal states, who have never assumed to 
repudiate their allegiance to the authority which gave 
them political existence as state citizens? If by the polit- 

1 Art, 4 2 2, cl. 1, Const. U. S. 
41 



322 GOVERNMENT. 

ical action of the people of South Carolina, as a corporate 
body, through the various departments of government — 
in severing their political connections with the nation — in 
renouncing their allegiance to its authority — in overturn- 
ing the government by which they had maintained their 
political connection thercAvith — in organizing a govern- 
ment foreign and alien thereto ; — and finally, in levying 
war upon the government and people of the United 
States, to the end that they might utterly subvert and 
destroy it — in claiming to be recognized, and in being 
recognized as belligerents to the United States as a 
nation, — she did not lose her political rights, privileges 
and franchises, as a political corporation, under the consti- 
tution of the United States, then she can claim for her 
'citizens equality of political rights with the citizens of 
the loyal states. But, it would be difiQcult to satisfy 
South Carolina herself, that she was a state, politically 
connected with the United States, and entitled to rep- 
resentation in congress, while she was carrying on the 
war of the rebellion, and doing all in her power to sub- 
vert and destroy the government, of which it is now 
claimed by some, that she is a constitutional member. 
But, if there was a moment during which the citizens 
of South Carolina ceased to possess the rights, privi- 
leges and immunities of citizens of the United States 
under the national constitution, they never can regain 
those lost rights and privileges, without the incorpo- 
rating and enfranchising act of the nation, creating 
them a new state, and again conferring upon them the 
privileges and immunities of citizenship. 

§ 498. But the people of those states, which, as political 
corporations, went into rebellion, were thereby, in the eye 
of the law, politically responsible ; and became, before the 
world, political rebels. As individuals, state citizens 
might remain loyal while the corporate mass went into 
rebellion. But as members of the political corporation 
receiving and exercising their political rights through 
its agency or instrumentality, the political character 
of the state citizen must abide the political character of 
the state corporation. If it remain loyal, the politi- 
cal status of the unconvicted citizen, is that of loyalty ; 
but if it raise the standard of rebellion, it gives the taint 
of rebel, politically, to all its citizens ; and they must 
abide its political fate. When South Carolina, as^ a 
political corporation, m&nt into rebellion, politically, she 
carried all her Gitizim& mth her ; and their political 



OF THE STATES. 323 

rights, privileges and franchises, as citizens of the nation, 
ceased. When Kentucky and Maryland, as political 
corporations, were prevented from going- into rebellion, 
the political status of their citizens, was preserved, 
although the spirit and acts of rebellion therein, were 
flagrant and undisguised. But, in dealing with the 
political riglits of communities, government deals only 
with classes, and not with individuals. Thus, in cre- 
ating a political state, or enfranchising the inhabitants 
thereof, it knows only classes, not individual members 
of the class. And, as the government enfranchises only 
by classes, so likewise, it disfranchises by classes. An 
individual becomes disfranchised, by becoming a mem- 
ber of a disfranchised class. As an individual, no man 
has any vested right or property, in a political franchise, 
farther than is especially provided by law. Therefore, 
the government, in dealing with political franchises, can 
confer, withhold, or reclaim them, whenever the public 
welfare requires. When a political state, by going into 
rebellion, carries with her, politically, the citizens thereof, 
their political rights cease as a class, without any inquiry 
iuto the loyalty or disloyalty of any particular portion 
of the citizens. They acquire their political rights as a 
class by the act of political enfranchisement, and they 
may lose them, as a class, by an act of political disfran- 
chisement. But, it is otherwise, in respect to individual 
and vested rights. When the consequences of treason, 
are to be visited upon the individual, and his life, liberty 
or pronerty are to answer for his individual acts, then 
each citizen or inhabitant, will stand or fall upon his own 
merits or demerits. In such case the citizen is not civilly 
responsible for the political action of the state of which 
he chances to be a member. In such case he is to be pre- 
sumed to be innocent until proved to be guilty. ^ 

§ 499. As political conditions of the individual citizen, 
treason and loyalty are incompatible with each other. 

1 Political rights are mere trusts conferred by the public authority upon its 
citizens or subjects, to be held and exercised exclusively for the public welfare. 
Therefore, the citizen acquires no vested interest in the exercise of such fran- 
chise- and the same authority which conferred the trust may modify, or 
revoke it at pleasure. The right to do so is one of legislative discretion, not 
of judicial determination. While the trust continues, the court will protect 
the citizen in the exercise of the same. But when, by legislative authority, it 
has ceased, courts of justice will look no farther than to ascertain the legisla- 
tive will in respect thereto. (See Luther v. Borden, 7 Plow. S. 0.. Hep., 1 ; see 
argument of attorney-genet al in State of Georgia v. Grant, Stanton', et al.) In the 
case of Conner v. The Mayor, &c., of Nciu York, 5 N. Y., 285, the- court held, that 
the Incumbent of an office had no property rights in the^sanie, or in the pros- 
pective salary, or other emoluments thereof; that the right of the officer to 
compensation grew out of the services rendered; cviad not out of a:ny contract 
between the government and the officer, that services should be rendered by 
liim. See opinion of Ruggles, J., on page 296. 



824 ■GOYERN'MENT. ' 

That is, the presence of a treasonable purpose in the sub- 
ject, is conclusive evidence of the absence of loyalty in 
him. But, political privileges, or franchises, have their 
existence only in loyalty to the enfranchising power. 
Therefore in all countries and under all forms of govern- 
ment, the inevitable consequence of treason, is political 
death ; that is, the traitor possessing any political franchise 
whatever, is, by the act of treason, deprived of it. Politi- 
cal rights are conferred as trusts, to be exercised only 
for the public good, by sustaining and defending the 
public authority, in its just and benign administration. 
Hence, the very end to be subserved, by conferring 
political rights and privileges, is destroyed by treason. 
Such is its nature, and such the inevitable consequences 
thereof, that the ascertainment of the treason, is, of 
itself, a judgment of forfeiture. That is, any act which 
proclaims the treason, i)roclaims, also, the political death 
of the traitor. When the government of the United 
States was compelled to declare the people of certain 
states, as political corporations, in a state of rebellion 
and civil war, such proclamation carried with it, the 
sentence of political death, in respect to such corpora- 
tions, and the members thereof^ 

§ 500. Whatever have been the theories of men 
respecting the political status of those states which 
went into rebellion against the government of the Uni- 
ted States, they, practically, have arrived at the same 
result in adjusting their political relations. The citizens 
of these states have been treated as deprived of their 
political rights and franchises. They have been made 

1 This principle is illustrated in all the action taken by the government of the 
United States toward the citizens of the rebellious states. President Johnson, 
in his proclamation of the 29th May, 1865, respecting North Carolina, asserts, 
among other things, that the rebellion has deprived the people of tht\jt state of 
all civil government; and that in order to enable the loyal people of the state 
to organize a state government, he appoints William W. Holden, provisional ■ 
governor, whose duty it is to malye regulations, enabling the loyal citizens 
to elect delegates, &c. It provides furtlier, as to the qualifications essential to 
become a delegate or an elector. This proclamation is based upon the hypothe- 
ses that the inhabitants of North Cai'olina have forfeited their political rights 
by the rebellion, and that the executive has the authority to prescribe the 
manner in which they may be again invested Avith them. It distinctly pro- 
poses that none but loyal citizens shall participate in the organization of the 
new government of the state. 

So far as President Lincoln attempted any movement in the direction of 
reconstruction, he proceeded upon the hypothesis, that unpardoned rebels had 
no political rights, and should be permitted to exercise no political authority. 
In virtue of his powers, under the constitution, and special laws enacted for 
that purpose, he. issued his proclamations of amnesty on the 8th December, 1863, 
and the 26th March, 1864, in which he released the penalties incurred, and 
restored the rights of citizenship to certain classes of those who had been in 
rebellion, and who had complied with the prescribed conditions. To sucli, and 
to those who had remained loyal to the nation, he confined the exercise of 
political rights in the rebellious states. Congress have, likewise, observed a 
similar rule. In all their legislation upon the subject, they have claimed and 
exercised the authority of treating the inliabitants of those states as being 
destitute of political rights ; as being subject to any conditions looking to their 
future enfranchisement which coijgrgss inay see fit to impose. 



OF THE STATES. 325 

the subjects of executive pardons from time to time.^ 
Early after the downfall of the rebellion, the president 
issued his anuesty proclamation, excepting therefrom 
certain classes of the inhabitants of these insurgent 
states. In all official intercourse between the general 

1 By the provisions of the act of congress of July 17, 1862 (? 13), the president 
was authorized at any time thereafter, by proclamation, to extend to persons 
who liad participated in the existing rebellion in any state or part thereof 
pardon and amnesty, with such exceptions, and at such time and on such con- 
ditions as he might deem expedient for the public welfare. In accordance 
with this provision. President Lincoln, on the 8th Decembe-, 1863 and an-aiu 
on the 2(5th March, 1804, issued a proclamation of amnesty, but without ettect. 
On tlie 29th day of May, ]8(i5. President Johnson issued the following. After 
relerring to the amnesty proclamations of President Lincoln, and stating that 
many who had lailed to avail themselves of the benefits thereof, were then 
desirous of obtaining amnesty and pardon, he proceeds: "To the end, there- 
fore, that the authority of the government of the United States may be restored 
and that peace, order and freedom may be re-established, I, Andrew Johnson 
President of the United States, do proclaim and declare that I hereby grant to 
all persons who have directly or indirectly participated in the existing rebel- 
lion, except as hereinafter excepted, amnesty and pardon with restoration of 
ail rights of property, except as to slaves, and except in cases where legal pro- 
ceedings under the laws of the United States providing for the confiscatioii 
of property of persons engaged in rebellion, have been instituted : but on 
the condition nevertheless, that every such person shall take and subscribe the 
lollo\ying oath or affirmation, and thenceforward keep and maintain said oath 
inviolate, and which oath shall be registered for permanent preservation, and 
shall be of the tenor and effect following, to wit: I do solemnly swear- 
er affirm — in the presence of Almighty God, that I will henceforth faithfully 
support and defend the constitution of the United States and the union of the 
states thereunder; and that I will in like manner abide by and faithfully sun- 
port all laws and proclamations which have been made during the existino- 
rebellion with reference to the emancipation of slaves, so help me God 

"The following classes of persons are excepted from the beneflts'of this 
proclamation: 

1. AH who are or shall have been pretended civil or diplomatic officers or 
otherwise domestic or foreign agents of the pretended Confederate gove'rn- 

o- ^H '^^° left judicial stations under the United States to aid the rebellion 

3. All who shall have been military or naval officers of said pretended Con- 
federate government above the rank of colonel in the army or lieutenant in 
the navy. v. cixi, m. 

4. All who left seats in congress of the United States to aid the rebellion 

5. All who resigned or tendered resignations of their commissions in the 
army or navy of the United States to evade duty in resisting the rebellion 

6. All who have engaged in any way in treating otherwise than lawfully as 
prisoners of war. persons found in the United States service as officers soldiers 
seamen, or m other capacities. ' 

7. All persons who have been, or are, absentees from the United States for 
the purpose of aiding the rebellion. 

8. All military and naval officers in the rebel service who were educated bv 
the government in the military academy at West Point, or the United States 
Naval Academy. 

9. AH persons who held the pretended offices of governors of states in insur- 
rection against the United States. 

«/n,f"TT,'?fiH°cf 7'^°^^^^"^®^''^^°"^°'''^^^^^^'^ the jurisdiction and protection 
ol the United States and passed beyond the federal military lines into the 
so called Confederate states for the purpose of aiding the rebellion 

}l-. ^\ P.e/spns who have l)een engaged in the destruction of the commerce 
uJaU.^'j^i'ltf^fZl''^?'' "'f. ^i-'? seas and all persons who have made rafds 
into the United States from Canada, or been engaged in destroying the com- 
merce of the United States upon the lakes aSd rivers which separate the 
British provinces from the United States. vvuii^u separaie uie 

12. All persons who, at the time they seek to obtain the benefits hereof by 
taking the oath herein prescribed, are in military, naval or civil confinement 
of thf u'^?;}.';!" 'il'ntl^n°."'^' °^ *^^ ""'V^' military 6r naval authorities or Igents 
nnviM^^^?thar ti<?.,i^ prisoners of war. or persons detained for oflfenses of 
an.\ kind, either before or after conviction 

^Jt'i;v.-^llrJni',',!f3''°,^''''^®.^°H^?t''"^yi^''^»'ticipated in said rebellion, and the 
estimated value ot whose taxable property is over twenty thousand dollars. 
11. All persons who have talven the oath of amnesty as prescribed in the 

^^Z\i^'^S\^'7f.''''}f'-V\li^.^^^^^ an oath of'allegiance to the 

goyeinment ot the United States since the date of said proclamation, and who 
ha\ e not thenceforward kept and maintained the same inviolate. 

1 rovided, that special application may be made to the President for pardon 
hT.o Ti^'^^T^V^^^"""^^ t^th® excepted classes, and such clemency will be 
i!«n^ii?'i'^-'^"^f®'^ ^m'^^t^ be consistent with the facts of the case and the 
peace and dignity of the United States.' 



326 GOVERNMENT. 

government and these states and their people, they have 
not been recognized as jjossessiug any political rights ; 
or as having any authority to re-construct the govern- 
ment of their states, or to re-invest themselves with 
political rights. The mayors of their cities, and the 
governors of their states have been subject to removal 
by the authority of the nation. While some contended 
for the political death of these states; others for the 
doctrine that they are still states, with all j)olitical fnnc- 
tions suspended, others still that they are states in full 
life and power, because they had not authority to secede, 
yet all agree that the government and people of the 
nation, had just authority to impose suitable conditions 
to their return as political associates and equals as 
members of the national family. 



CHAPTER XYI. 

OF THE OFFICE OF PEESIDEKT AND OF VIOE-PEESIDENT 
— THEIR DUTIES AND POWERS. 

§ 501. The president and vice-president of the Uni- 
ted States hold their respective offices during the 
term of four years, and are elected in the manner 
following. Each state appoints, in such manner as the 
legislature thereof direct, a number of electors equal to 
the whole number of senators and representatives 
to which the state may be entitled in the congress. 
The electors so appointed are required to meet in their 
respective states and vote by ballot for president and 
vice-president, one of whom must not be an inhabitant 
of tlie same state with themselves. The ballot must 
designate the i)erson voted for as president ; and there 
must be a distinct ballot for vice-president. The electors 
are theu required to make out a distinct list of all persons 
voted for as president, and of all voted for as vice-pres- 
ident and of the number of votes for each, which list 
they are required to sign, certify and transmit sealed to 
the seat of government of the United States, directed 
to the president of the senate. The president of the 
senate is required to open these certificates in the 
presence of the senate and house of representatives and 
to count the votes ; and the person having the greatest 
mimber of votes for president, when such number is 
a majority of the whole number of electors, is elected 



OF THE PRESIDENT, ETC. 327 

president. But if no person has sncli majority, then 
irom the persons receiving the highest numbers— not 
exceeding three — on tlie list of those voted for as presi- 
dent, the house of representatives are required to choose 
immediately by ballot, the president. But in making 
this choice the state, by its representation, has but one 
vote ; and to constitute a quorum for such purpose two- 
thirds of the states must be represented. If the house 
of representatives should fail to elect a president when 
the duty devolves upon them, by the fourth of March 
following, then the vice-president is required to act as 
president, as in case of death or other constitutional 
disability of the president. The person having the 
greatest number of votes as vice-president is elected to 
that office provided the number be a majority of the 
whole number of the electors appointed ; but if no 
person have such majority, then from the two highest 
on the list, the senate choose the vice-president. A 
quorum for such purpose consists of two-thirds of the 
whole number of senators ; and a majority of the whole 
number is necessary to a choice.^ 

g 502. Congress determines bylaw, the time for choos- 
ing the electors for president and vice-president, which 
time the constitution requires should be uniform through- 
out the United States. The time fixed by congress is 
the second Tuesday of ISTovember." 

§ 503. No person, except a natural born citizen of the 
United States, is eligible to the office of president or 
of vice-president. ]N"or is any person eligible who has 
not attained the age of thirty-five years, and who has not 
been fourteen years a resident within the United States. 
These are the only constitutional qualifications prescribed 
as essential to the incumbent of the office of president 
or vice-president.^ 

3 504. In case of the removal of the president from 
his office, or in case of his death, resignation or inability 
to discharge the powers and duties of the said office, 
they devolve upon the vice-president. Congress is 
authorized to provide by law for the case of removal, 
death, resignation or inability, both of the president and 
vice-president, declaring what officer shall then act as 
president : which officer so designated is authorized and 
required to act accordingly, until the disabilit}^ be 
removed, or a president be duly elected. The presi- 

> Art. 2, ? 1, Const. U. S. • and twelfth amendment of the Constitution. 

2 Art. 2, § 1, el. 4, Const. tJ. S. 

» Art. 2, § 1, cl. 5, 12th amendment to the Constitution, 3d clause. 



328 GOVERNMENT. 

dent is to receive a stated salary wliicli can neither be 
increased or diminished during the term of his office ; 
and he is not to receive within that period, any other 
emolument from the United States, or from any of them. 
Before entering upon the execution of the duties of his 
office, he is required to take the following oath or affir- 
mation : "I do solemnly swear, or affirm, that I will 
faithfully execute the office of president of the United 
States, and will, to the best of my ability, preserve, pro- 
tect and defend the constitution of the United States."^ 
g 505. The powers and duties which attach to the office 
of president of the United States, may be denominated 
executive, military and presidential. The constitution 
provides that the executive power shall be vested in a 
president of the United States ; whereby the president 
is constituted the executive head of the nation, and it is 
made his especial duty to take care that the laws are 
faithfully executed. As the executive, he is simply a 
civil officer, whose duties are prescribed by law ; and 
his authority in the discharge of the duties of his office, 
is as strictly limited to the means or measures i^rescribed 
by law, as is the authority of any executive officer, in 
the discharge of executive duties. That is, the presi- 
dent has none of the prerogative powers sometimes 
exercised by the king, who is the executive head under 
the British constitution.^ His duties and jjowers, as the 

1 Art. 2, ? 1, clauses 6, 7, 8 and 9, Const. U. S. 

2 Says RuTHERFORTH : " If we continue to speak of the legislative and execu- 
tive power in the abstract, it will be difficult to explain rightly what is meant 
by prerogative. It cannot properly be called discretionary executive power; 
because the executive power, in the nature of the thing is not discretionary in 
any part. Whenever it acts as discretion, this privilege, unless it arises from the 
necessity of the case, as in the heat of military action, comes from the legisla- 
tive, either by original establishment, or by long usage and custom, or by 
occasional permission. We shall be better able to understand what prerogative 
is, if we speak of the legislative and executive power, not in the abstract, but 
as lodged or intrusted by the state, in the hands of some one or more persons. 
Where the person, so intrusted with the executive power, is left, by the legisla- 
tive, to act in any instance, at his own discretion, to direct by his own under- 
standing, the public force which is naturally under the direction of the public 
understanding, such a discretionary power in him is called prerogative. Thus, 
in penal cases, if the legislative forbid the public force to be put in motion for 
the punishment of any action till the fact itself is pi-oved to the public under- 
standing in such a manner as the law appoints, and these will not suffer this 
force to be used but under the conduct of the law, so as to inflict only the legal 
penalty ; thus far there is no prerogative or discretionary power in him who 
is intrusted with the executive. But if the legislative, instead of reserving to 
itself the right of judging whether such legal punishment is to be suspended, 
or whether the criminal is to be wholly pardoned, leaves it to him to pardon 
or not as he thinks proper, such a discretionary power intrusted with him is 
called prerogative." (Institutes, B. 2, ch. 3, §8.) But this kind of prerogative 
power in the individual, is prerogative only in administration, not in source 
or origin. His discretion in such case, is derived from a higher authority, 
which is prerogative over him, and he is exercising the authority of another 
power, not his own. But the king has original prerogative power, not only 
prerogative in administration, but prerogative in source. There are now 
many limitations upon the king's prerogative, by acts of parliament, which 
involve the king's assent. But in the absence of such limitation, his preroga- 
tive is absolute ; that is there is no higher authority on earth to restrain or 
prohibit the exercise thereof. 



OF THE PRESIDEJ^T, ETC. 329 

chief executive, require that lie should appoint and com- 
mission such officers under him — and in the manner 
prescribed by the constitution and the laws, — as are 
necessary and proper to carry into effect the laws of the 
United States, in every department of internal adminis- 
tration. To this end the subjects of national administra- 
tion are divided by law into several departments ; at 
the head of each is placed a chief officer, as secretary 
of such department or bureau ; such as, the secretary of 
state, the secretary of war, the secretary of the navy, 
the secretary of the treasury, the secretary of the 
interior and postmaster-general. These officers are 
nominated by the president, and by the advice and con- 
sent of the senate, are appointed as the heads of these 
executive departments. These officers, thus appointed 
and commissioned by the president, constitute the chief 
executive officers of the nation. As such chief officers 
they reside at the capital and become the constitutional 
advisers of the president, in whose name, and by whose 
official authority they act in their several departments. 
The names of these seveial departments sufficiently 
indicate the class of executive duties they are severally 
required to perform. In this manner every law of the Uni- 
ted States, touching every subject of general administra- 
tion, falls naturally, under the administration of some 
one or more of these departments to be administered 
with or without the judicial aid of the national courts, 
as circumstances may require. These several depart- 
ments by their chief officer representing the official 
authority of the president, or some times by the direc- 
tion of the president himself, appoint such subordinate 
officers as are necessary to the faithful performance of 
the duties, and the execution of the powers, pertaining 
to such departments, throughout the United States ; such 
as postmasters, revenue and custom house officers ; 
assessors ; collectors ; registers and receivers at the 
public land offices, and the like. In this manner pro- 
vision is made for the discharge of the executive duties 
and powers of the president in every district of the 
United States. But from the executive head to the last 
and least officer required to administer in the executive 
departments of administration, all are subject to such 
direction and control as congress, exercising the pre- 
rogative powers of the nation, under the constitution, 
prescribes. 

42 



330 GOVERNMENT. 

% 506. In the execution of the laws of the United 
States through the intervention of the national judici- 
ary, another class of officers are required, who act 
ministerially in the general department of executive 
administration. Of these officers, are the official or jjub- 
lic attorneys, whose duty it is to investigate and advise 
the several departments on all questions of law which 
may arise under their respective administrations ; and 
also to apear in court and prosecute or defend before 
such tribunals, the rights and interest of the nation, 
whenever necessary ; of them also are the marshals and 
the deputy marshals, whose duty it is to execute the 
process of the court, whether mesne or final; who in so 
doing, act in the name and by the authority of the 
president of the United States, as the executive head 
of the nation. These officers — the marshals — act by 
authority of the special mandates or warrants i^laced in 
their hands, evidenced by the certificate of the proper 
officer, under the official seal of the nation. The duties 
to be performed by this class of executive officers are 
ministerial and are prescribed by law. The thing to 
be done or the powers to be executed by them are to be 
found in the process or warrant of authority placed in 
their hands. The manner of executing such j)rocesses, 
and the general powers with which they are invested, to 
enable them to execute the same, are the subject of 
legal regulation and direction, which cannot here be 
considered. 

g 507. Such is a general view of the framework of 
the executive department under the ])resident as chief 
executive, in the internal administration of the public 
authority of the United States. But he is also the 
executive head in the external administration of the same, 
so far as the laws of the United States are capable of 
being enforced beyond the limits of its territory. By 
and with the advice and consent of the senate— r two- 
thirds of the senators present concurring — he is 
empowerd to make treaties, and to nominate, and with 
the like advice and consent, appoint embassadors, and 
other public ministers, and consuls ; and also to recieve 
embassadors and other public ministers, and to take care 
that the laws be faithfully executed.^ Under the consti- 
tution he is the proper officer to be intrusted with the 
executive administration of all laws and regulations 
prescribed by congress, whether referred to in the consti- 

1 Art. 2, g? 2 and 3, Const. U. S. 



OF THE PRESIDENT, ETC. 331 

tiition or otherwise. But in all this the president acts 
only as an officer of the law in the civil department of 
administration. It is the anthority and power of the 
office, and not of the individual, he is required to exe- 
cute. Being: only the legal administrator of the duties 
and powers incident to the office created by the 
constitution and laws of the United States, he can exer- 
cise no ])rero(jative authority or power whatever. In 
determining what pertains to the office of president as 
the civil executive of national authority, care must be 
exercised not to confound his official position with that 
of the king' under the British constitution. The king 
X)Ossesses iirerogative power ; in theory, he is sovereign ; 
he is the source and fountain of authority and lawr 
and the executive powers are not unfrequently strength- 
ened and enlarged by the supposed presence of pre- 
rogative power in the British executive. In studying 
British precedents, therefore, great care must be exer- 
•cised to keep this distinction in view. What would be 
legitimate for the king to do under the British consti- 
tution, might be usurpation in the president, under the 
American constitution. 

g 508. As the civil executive of the nation, the presi- 
dent has only executive authority and i)ower. Such 
authority and powers can only exist in the presence of 
law, by which they are created, or out of which they 
arise. When, therefore, the constitution vests in the 
president as an officer, the executive authority of the 
nation, it only implies such duties and powers as are 
created by, and arise out of the law. By this provision 
the president is only made the agent or instrument 
of the law, to do whatever the prerogative power of the 
nation requires of him. He is thereby made the subject 
of law ; and is placed under its obligations as the servant, 
not the sovereign of the nation. The authority is iqwn 
him, not from him ; and he is required to act for the 
public, not for himself; he is required to carry out, or into 
execution, the policy of the nation, as expressed in the 
laws of congress, which are the constitutional exponents 
of the national prerogative and will ; and is not author- 
ized to impose a policy of his own upon the nation. As 
the national executive, he has no duty or power outside 
of the constitution and the laws of the nation. As a 
citizen, he is at liberty to entertain and express opinions 
of economy and policy ; but as an executive, he has no 
authority to compel their adoption ; or to attempt to use 



332 GOVERNMENT. 

the patronage and powers of his office to enforce them. 
It is an impeachable offense for a high public officer to 
prostitute the patronage and powers of his office, to pur- 
poses of personal gain, or political advantage. As an 
executive officer, his whole power and duty consists in 
executing the law according to his best understanding 
and ability. The common sentiment that the president is 
authorized, and therefore justified, to use the great pow- ' 
ers and patronage of that high office, as though they 
were his personal perquisites, to be used in influencing, 
and buying i3opular favor or partisan support, is corrupt- 
ing and demoralizing in the extreme. It calls about 
him a class of men whose sole influence is to corrupt, 
• demoralize and debauch any honest or just purposes, 
feelings or sentiments he might otherwise entertain. 
It commits him to the influence and control of a class 
of politicians whose highest virtue is, "not to leave 
undone, but keep unknown" in their raids upon the 
public treasury, and in their prostitution of the public 
authority to their ijrivate purposes. So universal has 
this been, that experience has created the public senti- 
ment, that the conduct of the mere politician is not to 
be supposed to be either honest or patriotic. 

g 509. As the civil executive of the nation, the x)resi- 
dent has i)ower to grant reprieves and pardons for 
offenses against the United States. A reprieve sus- 
pends the execution of the sentence for the time being, 
still leaving the offender subject to the punishment 
denounced against him. A pardon remits the penalty, 
and, if unconditioned, sets the offender free from the 
legal consequences of the offense committed. The pro- 
priety of pardoning a criminal after he has been convicted 
of a crime against the public has been seriously ques- 
tioned by learned and able men. It has been contended 
that while clemency is a virtue, and one of the noblest 
prerogatives of the throne, that its exercise is a disap- 
l^robation of the laws made for the public good ; and as 
a virtue, belongs to the legislator rather than to the 
executor of the laws — a virtue which ought to shine in 
the code rather than in the private judgment. That to 
show mankind that crimes are sometimes pardoned, 
and that punishment is not the necessary consequence, 
is to nourish the flattering hope of impunity, and is the 
cause of their considering every punishment inflicted 
an act of injustice and oppression. That the prince, in 
pardoning, gives up the public security in favor of an 



OF THE PRESIDENT, ETC. 333 

individual, and, by Ms ill-jndged benevolence, proclaims 
a public act of impunity.^ To which it is replied : 
" Were it possible in every instance to maintain a just 
proportion between the crime and the penalty, and were 
the rules of testimony and the mode of trial so perfect 
as to preclude mistakes or injustice, there would be 
some color for the admission of this plausible theory. 
But even in that case, i)olicy would sometimes require a 
remission of a punishment strictly due for a crime cer- 
tainly ascertained. The very notion of mercy implies 
the accuracy of the claims of justice." ^ While the end 
of punishment in all civilized and enlightened govern- 
ments is to protect the public and individuals from the 
selfish, sensual and malignant acts of wicked and per- 
verse persons, as well as to reform the offender ; and 
while nothing so Aveakens the restraints of the law as 
the hope of escaping its penalties, every practice in the 
administration of the public authority which tends to 
render uncertain the infliction of the punishment due 
to crime, endangers the public security, and wrongs the 
individual members thereof — even those who are dis- 
l)osed to commit criminal acts. There are those in 
society so under the control of their appetites, passions 
and propensities, that nothing but the prospect of cer- 
tain punishment restrains them from the commission of 
crimes. To all such, this exercise of mercy becomes a 
license, wronging themselves and their victims. It may 
well be questioned whether the extending of the par- 
doning clemency to unquestioned criminals is not an 
unmitigated evil. When there has been a mistaken 
conviction, or where the guilt of the prisoner is ques- 
tionable, even after conviction, it is proper that the 
130wer to reprieve or even pardon should exist, that an 
unmerited penalty may be avoided. But when there is 
unquestioned guilt, where the application is for mercy 
to the individual, and not for justice, the public has too 
much at stake to make the sacrifice. If the penalty be 
clearly too severe for the technical offense committed, 
the power of reprieve might be exercised, that the law- 
making power might adapt to the offense the proper 
penalty ; but an appropriate penalty should, in all cases, 
be sure to follow a clearly ascertained crime. 

§ 510. But a grave question arises under the lan- 
guage of the constitution as to the extent of the power 

* Beccaria on Punishments, ch. 46. 2 1 Kent's Com., lect. 13, p. 265. 



S34 GOVERNMENT. 

of the president to grant pardons for offenses against the 
United States. That the people of the United States 
had unlimited authority over this snbject, cannot be 
questioned. They could have authorized the president 
to pardon as well before, as after conviction ; but the 
question is, did they so authorize him to exercise such 
power. Mr. Justice Wayne, in delivering the opinion 
of the court in ex ijarte Wells,^ said, that the word par- 
don meant forgiveness, release, remission. Forgiveness 
for an offense, whether it be one for which the person 
committing it is liable in law or otherwise. Eelease from 
pecuniary obligation, as where it is said, I pardon you 
your debt. Or it is the remission of a penalty to which 
one may have subjected himself. * * In the law it 
has different meanings which were as well understood 
when the constitution was made, as any other legal word 
in the constitution now is. Such a thing as a pardon 
without a designation of its kind is not known in the 
law. Every pardon has its peculiar denomination. 
They are general, special or particular, conditional or 
absolute. * * It — the constitution — meant that the 
power — to grant reprieves and pardons — was to be used 
according to law ; that is — as it had been used in Eng- 
land and these states when they were colonies ; not 
because it was a prerogative power, but as an incident of 
the power to pardon, i)articularly when the circumstance 
of any case disclosed such uncertainties as made it 
doubtful if there should have been a conviction of the 
criminal ; or when they are such as to show that there 
might be a mitigation of the punishment without less- 
en! ug the obligations of vindicatory justice. Without 
such a power of clemency to be exercised by some 
department or functionary of government, it would be 
most imperfect and deficient in its political morality, and 
in that attribute of deity whose judgments are always 
tempered with mercy. And it was with the fullest 
knowledge of the law upon the subject of j)ardons, and 
the philosoi)hy of goverment in its bearing upon the 
constitution, when the court instructed Chief Justice 
Marshall to say^ : " As the power has been exercised 
from time immemorial by the executive of that nation, 
whose language is our language, and to whose judicial 
institutions ours bear a close resemblance, we adopt 
their principles respecting the operation and effect of a 
pardon, and look into their books for the rules prescrib- 

1 IS How. S, C. R., 307, 2 United States v. Wilson, 7 Pet., 1G3. 



OF THE PRESIDENT, ETC. 335 

mg the manner in whicli it is to be nsed by the person 
who would avail himself of it." 

g 511. But in determining what pertains to the office 
of president as the civil executive of national authority, 
care must be exercised not to clothe him with preroga- 
tive powers ; nor must such a construction be put upon 
the language of the constitution as would include those 
powers of the king which were exercised by him, not as 
the executive of the British nation, but as possessing 
prerogative power, independent of his executive office. 
We are to suppose the people used language in accord- 
ance with the structure and character of the American 
constitution of government, and not in accordance with 
the structure and character of the British constitution, 
wherein it difiered from the American. The British 
king and the American president, though both chief 
executive officers of their resi^ective governments, were 
nevertheless very diifereut officers in respect to the 
theory of the source and limitation of their official 
powers. AVhile the king, as the mere executive of the 
nation, was limited to the enforcement of the laws as 
they existed, yet as possessing prerogative powers, until 
subjected to the limitations of parliament, he could go 
further and declare a new, or abrogate the effects of the 
old law. But it is otherwise with the president. He 
has, in such respect, only executive powers, by which 
he is required to execute the law upon the guilty 
offender, when the offense has been determined, and the 
sentence of the law has been pronounced. To j^ardon 
or reprieve an individual, implies that he has become, in 
the eye of the law, the subject of punishment to be 
inflicted upon him. It irax)lies that the law has pro- 
nounced him guilty, and denounced upon him the 
penalty. The executive, as an officer of the law, can 
know nothing of the guilt or innocence of a party, or 
of his need of a reprieve or pardon, until his guilt has 
been judicially ascertained. No reprieve or pardon can, 
in law, be granted until there be that from which a 
reprieve is needed, or for which a pardon is demanded. 
Under the genius of American institutions, the law 
holds all persons to be innocent until their guilt has 
been judicially ascertained. How, then, can the legally 
innocent be the subject of a legal reprieve or jjardon. 
The king as the source and fountain of sovereignty and 
the law, formerly could do what, under the American 
theory, the legislature alone can do — to wit: he could 



836 GOVERNMENT. 

absolve individuals from their liability to punishment 
for acts committed by tliem against the peace and 
dignity of the realm. The principle asserted was, he 
made the law, and therefore has authority to suspend 
or repeal it. For it is a ijrinciple, that the authority 
which creates, can modify or destroy at pleasure that 
which it has created. The legislative authority which 
creates an offense or crime, and denounces its penalty, 
can repeal or modify the law at pleasure ; can excuse 
the delinquent upon such conditions as it sees fit to 
impose. But this authority has its foundation in pre- 
rogative, not in executive power. It can be exercised by 
the sovereign, not by the mere executive} 

g 512. The ijrinciple which calls for the existence of 
the reprieving and pardoning power in the executive 
does not extend to pardoning classes or individuals 
before conviction and sentence. It will be in season 
to remit a fine or penalty, after it has been judicially 
ascertained that the individual is subject thereto. The 
imperfection of the rules of law, or modes of trial by 
reason of which mistakes are liable to occur, and injus- 
tice is liable to be done, as reasons for the exercise of 
the pardoning power, can apply only to those who have 
been improperly convicted on trial ; not to those who 
are liable to be tried and convicted, and whom the law 
holds to be innocent until judicially condemned. There 
may be cases where whole classes need to be excused 
from the consequeues of their criminal acts — as in case 
of rebellion — without going through the formality of a 
trial, conviction and pardon. Public acts of amnesty 
may be necessary and proper for the future welfare 
and peace of society. But such acts should proceed 

1 The king himself condemns no man. That rugged task he leaves to his 
courts of justice. Tiie great operation of his scepter is mercy. His power of 
pardoning was said by our Saxon ancestors to toe derived a lege suce dignitatis; 
and it is declared in parliament by statute (27 Plen. VIII, c. 24), that no other 
person hath power to pardon or remit any treason or felonies whatsoever; but 
that the king hatli the whole and sole power thereof united and knit to the 
Imperial crown of the realm ; and this power belongs only to the king de facto, 
and not to the king de jure, during the time of usurpation. In monarchies, 
the king acts in a superior sphere, and, though he regulates the whole govern- 
ment as the first mover, he does not appear in any of the disagreeable or invidi- 
ous parts of it. Whenever the nation see him personally engaged, it is only 
In works of legislation, magnificence, or compassion. To him, therefore, the 
people look up as nothing but the fountain of bounty and grace; and these 
repeated acts of goodness coming only from his own hand, endear the sover- 
eign to his subjects, and contribute more than anything to root in their hearts 
that filial affection and personal loyalty which are the sure establishment of a 
prince. The king may pardon all offenses merelj'' against the crown or the 
public, except, by the habeas corpus act of 31 Car. II, c. 2; the committing any 
man to prison out of the realm is made prceniunire, unpardonable even by the 
king. Nor can the king pardon where private justice is principally concerned, 
in the prosecution of offenders. Nor can he pardon a common nuisance while 
it remains unredressed. Nor can he pardon an offense against a popular or 
penal statute after information brought, because the informer has acquired a 
private property in a part of the penalty. (4 Bl. Com., pp. 397, 398.) 



OF THE PRESIDENT, ETC. 337 

from the prerogative powers of sovereignty, and not from 
an assumption of authority by a mere executive officer. 
If the operation of the law is to be suspended, it is the 
province of the law-making authority to suspend it ; not 
of him who is iustrusted with the exercise of mere 
executive powers, with the attendent authority to 
reprieve or pardon those who are condenmed and put 
into his hands to receive the penalty. The question of 
general amnesty is one of policy affecting the state ; and 
not of clemency affecting the individual. There are no 
reasons to be assigned in favor of conferring upon an 
executive otlicer merely, the authority to reprieve or 
pardon persons who have not been tried, convicted and 
sentenced. There is nothing in precedent to sustain 
such a policy.^ It would be exceedingly dangerous 
to create a power in the hands of a single'individnal, to 
stand between society and those who prey upon it, 
to protect them from the consequences of their crimes. 
Whether an individual needs or merits a pardon for a 
murder or other crime alleged against him, cannot be 
known to society until his conduct has been investigated, 
and the quality of his actions ascertained. It cannot 
for a moment be admitted that a president of the United 
States can stand by and see a gigantic rebellion organ- 
ized, and say to the insurgents, if you are unsucessful 
I will pardon you, and thus save you from the legal 
consequences of your rebellious acts. No executive 
officer as such, ever can possess, and under an enlight- 
ened government, no mere executive officer ever will be 
possessed of, such a power of pardon. The genius of 
the American government, the theory of the source and 
limitation of its authority, and the policy of all laws for 
the protection and preservation of society under its 

1 It is no precedent for the American president to be able to show that the 
Kings or sovereigns of monarchical countries have exercised the power of par- 
doning before conviction. The theory in monarchical countries — that is 




acknowledged in everything where, by the law of nature or tlie restraints of 
parliament sanctioned by his assent, he is not prohibited from the exercise 
thereof. He, therefore, as the sovereign exercising absolute prerogative power, 
can pardon in all cases where by act of parliament he has not constitutionally 
bound himself not to do so. The difference between the authority of the presi- 
dent and the authority ot the king is this: the president, as executive, can 
grant pardons only m cases authorized by the constitution; the king, as sov- 
ereign, can grant pardons in all oases not prohibited by the constitution. The 
theories of the source and limitation of authority iii the president, and the 
same m the king, are diameti-ically opposed each to the other; therefore, 
the exercise of the rights of sovereignty by the king furnishes ao safe prece- 
aeut to be followed by a repuliUQan executive. 

43 



S38 GOVERNMEKT. 

administration, forbid sucli an interpretation to be put 
upon the clause, " the x>i'esident sball bave power to 
^rant reprieves and pardons for offenses against tbe 
United States." 

S 513. Tbe power in tbe president to grant reprieves 
and pardons for offenses against tbe United States, will 
provide for all proper cases of executive clemency if 
confined in its application to persons convicted of such 
offenses. Wben tbere bas been no trial or conviction 
of an offense, tbere can be no pressing emergency 
demanding a reprieve or pardon at tbe band of tbe 
president. Tbe executive as sucb, can only be called 
upon to exercise bis clemency after tbe offender bas 
come under bis jurisdiction ; tbat is, after notbing 
remains to be done, but to execute tbe sentence of tbe 
law upon bim. Before conviction tbe executive bas no 
jurisdiction over bim as a criminal, nor can be gaiu any 
but by conviction and sentence. Upon wbat bypotbesis 
tben, can tbe mere executive officer reprieve or pardon 
a person unconvicted of crime. If be can do it before 
conviction, be can use tbis power as a license to the 
commission of crime. To suppose tbat an unconvicted 
person can require tbe exercise of tbe reprieving or 
l)ardoning power of tbe executive is an absurdity. Tbere 
may be cases as in rebellion or civil -war, wbere a large 
class of citizens may need, and public policy may require, 
an amnesty in tbeir bebalf. But sucb exigency addresses 
itself to tbe legislative, not to tbe executive department 
of government. It calls for tbe exercise of prerogative 
power, not executive clemency. Tbe people bave a 
rigbt to be consulted as to tbe safety or i)ropriety of 
admitting to political power tbose wbo bave sougbt tbe 
destruction of i)ublic security, and tbe overthrow of tbe 
public authority. 

g 514. Under this provision of the constitution tbe 
president may grant a conditional pardon. This ques- 
tion was raised in ex i)arte Wells.^ Tbe prisoner bad 
been convicted of murder and sentenced to be bung. 
President Fillmore bad granted bim a conditional pardon 
substantially as follows : " For divers good and suf- 
ficient reasons I bave granted, and do hereby grant 
unto bim, tbe said William Wells, a pardon of tbe 
offense of whifcb be was convicted — upon condition that 
be be imprisoned during his natural life ; that is, the 
sentence of death is berebj commuted to imprisonment 

» 18 How. S. C. R., 807. 



OF THE PRESIDENT, ETC. 339 

for life iu the penitentiary of Washington." Tliis par- 
don was accepted in these words : " I hereby accept the 
above and within pardon with condition annexed." 
Afterward the prisoner made an application to the cir- 
cnit court of the District of Columbia for a writ of 
habeas corpus. It was rejected, and an appeal was taken 
to the supreme court. No statute had been passed 
regulating the i)ardoning power of the president, con- 
sequently the president acted under the power as 
expressed in the constitution. It was contended that 
the pardon was valid, and remitted entirely the sentence 
of the court; and that the condition was void ; — that 
the president athxing a condition to his pardon assumed 
a power not conferred by the constitution; — that, in 
effect, he legislated a new j)unishment into existence. 
But the supreme court held otherwise : that according 
to the English law on the subject, the general authority 
to grant pardons included every denomination of pardon 
known to that law ; such as special or particular, con- 
ditional or absolute; — ^ that the same meaning must 
be given to the word as prevailed iu the colonies and in 
England at the time it found jjlace in the American 
constitution.^ 

% 515. The power to grant pardons does not extend to 
impeachments. Trials by imi)eachmeut have reference 
only to ])ublic character and official duty. It is the mode 
by which one high in office, having been guilty of a 
breach of his official trust, is arraigned before the people 
to answer for his delinquency. By the terms of the 
constitution, the president, vice-president and all civil 
officers of the United States, may be removed from office 
on impeachment for, and conviction of, treason, bribery, 
or other high crimes and misdemeanors. It would, 
therefore, have been highly improper to have allowed the 
president to interfere by executive clemency either to 
prevent the impeachment or conviction of a faithless 
public officer. For similar reasons the king of England 
cannot interfere to protect his high officers from impeach- 
ment and conviction, although it is held that he can 
pardon after conviction.^ De Lome, however, thinks it 
doubtful whether the king has power to remit the punish- 
ment of one condemned in consequence of impeachment. 

1 See Uniicd States v. Wilson, 7 Pet., 182. 

2 See Cathcarl v. Robinson, 5 Pet., 261: see also 8 Watts &. Sergeant, 197; 
4 Black. Com., 401. 

3 4 Bl. Com., 399, 400; 12 and 13 Wm. Ill, o. 2; Rawle ou Const., cU. 17, p. 17G; 
1 Tuck. Bl. Coxa., apiD., 331. 



340 GOVERNMENT. 

He says "I once asked a gentleman very learned in the 
laws of their country, if the king could remit the pun- 
ishment of a man condemned in consequence of an 
impeachment, of the house of commons. He answered 
me : the tories will tell you the king can ; and the whigs, 
that he cannot." But it is not perhaps very material that 
the question should be decided : the great public ends are 
attained when a corrupt minister is removed with dis- 
grace; and the whole system of his proceedings unveiled 
to the public eye.^ But whatever may be the authority 
of the king in this respect, the president possesses no 
such power.^ 

g 516. There is also one other offense, which, from its 
nature, the president cannot pardon. The constitution 
has committed to each branch of the national legislature 
the authority to punish for contempts, or for the dis- 
orderly behavior of its members. This authority is 
essential to the existence and independence of that body; 
therefore, the executive cannot be permitted to interfere 
between either house and the person offending. To con- 
fer upon the president or any other officer, the authority 
to interfere by the i)ower of pardon, with the author- 
ity of either house to protect itself from such disturbance 
as would tend to interrupt its proceedings, would be to 
endanger the independence thereof, and thus to place 
the rights of the people in perpetual jeopardy.^ 

g 517. By the provisions of the constitution the pres- 
ident is also created commander-in-chief of the army 
and navy of the United States ; and also of the militia 
of the several states when called into the actual service of 
the United States.* But the powers and duties of the 
president as commander-in-chief of the army and navy, 
are separate and distinct from his powers and duties as 
the simijle executive head of the nation ; and neither of 
those functions of the i^residential ofdce derive any 
strength from the other. As the chief executive of the 
nation, he takes no authority from the military depart- 
ment of his office: and as commander-in-chief, he gets 
no aid from the civil department of the same. That 
is, his authority as commander-in-chief is the same as it 
would have been, had it been an office separated from, 
and independent of, the office of president of the United 
States. Had the constitution provided for the appoint- 

' De Lome on British Constitution, p. 95, note a. 

2 Art. 2, § 2 of Const. U. S. ; 2 Story's Com, on Const., § 1503. 

3 See Story's Cora, on Const., § 1503. 

4 Art. 2^2, clause 1, Const. U. S. 



OF THE PRESIDENT, ETC. 341 

ment of some other person tliau tbe presidential incum- 
bent to that office, the powers and duties of the office 
would have been the same. Therefore in discussing- 
the limitations of the authority of the president, or the 
extent of the same, it becomes important to ascertain 
and keep in mind, the particular character in which it is 
supposed he acted or proposes to act. If the power to 
be exercised, or the duty to be performed, belong to the 
military department, then the authority of the president 
to act in the premises, comes either from special legis- 
lation, or from his constitutional office as commander-in- 
chief. But if it pertain only to the civil side of the office, 
his authority must be found in the laws authorizing him 
to act in the premises for the purpose of executing some 
existing law, or enforcing some judgment or decree of 
the court. As commander-in-chief, the x)resident is 
amenable to the laws of congress in performing the 
duties and exercising the functions of that office. 
Although he is, by the terms of the constitution, the 
commander-in-chief of the army and navy, and of the 
militia of the several states when called into the actual 
service of the United States, yet congress has author- 
ity to make rules concerning captures on laud and water; 
to provide for the raising and supporting of the army and 
navy ; and to make rules for their government ; to pro- 
vide for calliug the militia into the national service, and 
for organizing, arming and disciplining the same.^ 

§ 518. How far the president of the United States 
had authority to re-adjust the political relations of the 
revolted states, and of the inhabitants thereof, to 
the nation, and to the general government, has been the 
subject of grave discussion. Shortly after the over- 
throw of the military power of the rebellion, and the 
surrender of the insurgent forces, the president was 
assassinated ; and the vice-president became the acting 
president. Instead of calling together the congress or 
legislature of the nation to provide by law for the 
reconstruction of governmental institutions in the insur- 
gent states, the acting president attempted the task 
under the authority and powers of the presidential office. 
By his proclamation of May 29, 1865, in relation to the 
state of North Carolina, he saj^s, the constitution of 
the United States guarantees to every state a republi- 
can form of government, and protection against invasion 
and domestic violence — that it is the duty of the presi- 

1 Art. 1, 1 8, els. 11, 12, 13, 14, 15, 16, Const. U. S. 



S42 GOVERNMENT. 

dent to take care that the laws be faitlifnlly executed; 
lie then asserts that the rebellion has depiiv^ed the 
people of ]N"orth Carolina of ail civil government; and, 
therefore, to enable the loyal people of the state to 
organize a state government, he appoints William H. 
Holden provisional governor, whose duty it shall be, as 
early as possible, to make regulations enabling the loyal 
citizens of the state to elect delegates to a convention 
for the purpose of forming a constitution. No person 
was to be i)ermitted to be a delegate unless he should 
first take the oath required in the proclamation of 
amnesty,^ and should be a voter according to the laws 
of the state existing before the date of the act of seces- 
sion ; that the convention or legislature thereafter to be 
assembled should prescribe the qualifications of electors 
and the eligibility of x)ersons to hold office. He like- 
TPise directed the military and naval authorities to assist 
the provisional governor in carrying that jjroclamation 
into effect, and in no way to hinder the loyal people of 
the state from thus organizing a state government. 

g 519. In this proceeding the president must have 
acted under the authority of his office as the executive 
of the nation, or as commander-in-chief, or as execu- 
tive in part and commander-in-chief in part, or he must 
have acted without authority. The occasion which 
called for the exercise of presidential or other authority 
in the adjustment of the political rights of the jj^^ople 
of ISTorth Carolina was, that the rebellion had deprived 
them of all civil government ; and the measures pro- 
posed were to enable the loyal people of that state to 
organize a state government. If it were true that the 
people of North Carolina had been deprived of all civil 
government by the rebellion, as it undoubtedly was, 
and the loyal people were in need of a new state organi- 
zation to restore their political rights and relations to 
the general government, then they needed authorit}'' 
to reconstruct or be reconstructed coming from the sov- 
ereignty or the prerogative power of the nation. If the 
political government constituting the state of North 
Carolina had been destroyed by the political rebellion 
of the state, and the people had been deprived of all 

1 The oath alluded to is in these words, "I, , do solemnly swear — or 

afRrm — in the presence of Almighty God, that I will henceforth faithfully 
support and defend the constitution of the United States, and the union of tlie 
states thereunder, and that I will in like manner abide by and faithfully sup- 
port all laws and proclamations which have been made during the existing 
rebellion with reference to the emancipation of slaves, so help me God." (See 
President Johnson's Amnesty Proclamation of May 21), 1865.) 



OF THE PRESIDENT, ETC. 343 

civil government as a state, it required, the exercise of 
sovereign authority to reestablish a state government 
therein, which should again confer upon the people the 
right of self-government in respect to their local and 
domestic interests, and the right to be represented in 
the general government of the nation. If the people 
of the state Iiad inherent authority in themselves to 
reconstruct their state government, and re-establish their 
political rights, then the interference of the president by 
the appointment of a provisional governor, and by pre- 
scribing the qualifications of delegates and electors to 
their forthcoming convention or legislature, was unwar- 
ranted — was a usurpation. If the j)eople did not 
possess such inherent authority in themselves, they 
needed the enabling act of congress, or of the law- 
making power to give them the authority. The presi- 
dent, as the mere executive of the nation, could only 
execute the law as it existed. He could enforce only 
such rights and privileges as were secured by law. He 
is charged by the constitution to take care that the 
laws be faithfully executed ; but he is nowhere required 
or authorized to supply defective legislation. He is 
required to protect and enforce the rights of the people 
and of the states, where they have been ascertained by 
law. Beyond this, as a civil officer, he has no authority. 
As commander-in-chief he could exercise only martial 
power, and govern by martial anthorit^^ So far as the 
military and naval forces might be required to aid the 
civil authorities in the administration of their civil 
offices, he could command their co-operation. But as 
commander-in-chief he has no civil powers, nor can he 
confer any civil authority. Under the exigencies of war 
he can exercise the exigency powers of his office; but 
they cannot affect permanently the political or civil rights 
of those who, for the time being, become the subject 
of martial administration. As commander-in-chief, the 
president can appoint a military governor to administer 
where civil authority cannot make itself respected ;^ but 
he has no authority to appoint provisional governors 
who are to exercise civil functions, and then require the 

I Gen. G. H. Shepley was appointed military governor of Louisiana in 1862. 
Subsequently, Michael Hahn, having been elected governor in March, 1864, 
President Lincoln invested him with the powers of military governor of that 
state, thus : 

Executive Mansion, Washington, March 15, 1864. 
HI'S Excellency Michael Hahn, Oovernor of Louisiana ; 

Until further orders, you are hereby invested with the powers exercised by 
the military governor of Louisiana. 

Yours truly, ABRAHAM LINCOLN. 



344 GOVERNMENT. 

military to aid them in the euforcemeut of their author- 
ity. The proposition is simply this : if the people of 
Korth Carolina had by the political rebellion of the state, 
been deprived of all civil government, it required the 
authority which can institute a government to supply 
that which had been lost. If they had been divested of 
political rights and privileges through the loss of their 
civil government, they could be re-invested again with 
those rights and privileges only by the authority which 
could give them a valid government, through which to 
acquire the state rights and privileges, and the rights 
and privileges of state citizenship under the constitution 
of the United States. But no such authority could be 
derived from the presidential office, in any capacity 
whatever ; that is, neither from his j)owers as executive 
or as commander-in-chief. ^ 

§ 520. The president has power, with the advice and 
consent of the senate, to make treaties, provided two- 
thirds of the senators present concur. The treaty- 
makin^g power by which the nation becomes obligated 
to perform the thing stipulated, or to refrain from doing 
that which is agreed shall uot be done, must proceed 
from the prerogative powers of sovereignty. The 
power of negotiating and contracting jjublic treaties 
between nations is incident to sovereignty ; and, hence, 
belongs to every sovereign state.^ Public treaties 
between sovereigns or states are usually negotiated 
through the agency of ministers, or special diplomatic 
agents appointed for such purpose.^ But to enable a 
minister or other diplomatic agent to conclude and sign 
a treaty with the government to which he is accredited, 
he must be furnished with full ])ower, independent of 
Ms general letter of credit.* There has been much dis- 
cussion whether treaties and conventions negotiated 
and signed by a minister with full poivers, are binding 
upon the sovereign until ratified by him. It is usual 
for the sovereign to accompany the general full -power 
with particular or special instructions, which are retained 
as a secret between the sovereign and his minister. 
The question discussed is, should the minister plenipo- 
tentiary, while keeping within the limits of his general 
powers, depart from the special instruction given him, 
would the sovereign be bound by such treaty or conven- 

1 See in Appendix extracts from president's message of December 4, 1865. 

2 Ijawreuce's Wiieat., 441. 

3 Vattel, B. 2, ch. 12, § 156. 
* Lawrence's Wlieat,, 443. 



OF THE PRESIDENT, ETC. 345 

tioii before ratifying tlie same. Grotius thinks the 
sovereign is bound by the acts of his embassador within 
the limits of his patent full power, although the embas- 
sador transcend or violate his secret instructions.^ 
Vattel thinks the sovereign is bound by the acts of his 
minister within the limits of his credentials, imless the 
power of ratifying be expressly reserved.^ But all this 
depends upon established custom. It is so exceedingly 
diHicult to anticipate the complications that may arise 
dining the progress of a convention or treaty, that in 
order to avoid' all danger and difficulty, sovereigns 
usually reserve to themselves the power of ratifying 
what lias been concluded upon in their name. Therefore, 
"the plenipotentiary commission is but a procuration 
cum libera.''^ Bynkershock lays down the rule, that if 
the credentials are special, and describe the particulars 
of the authority conferred on the minister, the sovereign 
is bound to ratify whatever is concluded in pursuance 
of such authority.^ But if the minister exceed his 
authority, or undertakes to treat points not contained 
in his full power and instruction, the sovereign will be 
justified in delaying or refusing his ratification. But 
these questions cannot arise nnder the constitution of 
the United States. The ministers plenipotentiary or 
diplomatic agents of the United States can conclude no 
convention or treaty which will be binding upon the 
nation until ratified by the senate, by the approbation 
of two-thirds of the senators present when the question 
is submitted.^ 

1 Grotius, B. 2, ch. 11, § 12; Puff., B. 3, ch. 9, § 2. 

2 Vattel, B. 2, ch. 12, § 156. 

3 Vattel, supra ; see Lawrence's Wheat., pt. 3, ch. 2, g5. 

4 Id., B. 2, ch. 7. 

The president is sometimes authorized by law to act in anticipation of 
the ratification, as in the case of the negotiations ending in the purcliase 
of Louisiana, for which two millions of dollars had been appropriated, 
the plenipotentiaries being instructed to provide for the repayment of the 
advance in the event of the refusal of the United States to ratify the con- 
vention. (Mr. Madison, Secretary of State, to Mr. Livingston and Monroe, 
March 2d, 1S02.) Also by act of March .3d, 1817, the sum of three millions was 
appropriated to enable 'the president to conclude a treaty of peace, limits 
and boundaries, with Mexico, to be used by him in tlie event that the 
treaty, wlien signed by the authorized agents of the two governments, and 
ratified by ISIexico, shall call for the expenditure of the same or a part thereof. 
(Statutes at Large, vol. 9, p. 17-1.) In exchanging the ratification of the treaty 
between the United States and Great Britain in relation to an inter-oceanic 
communication, the British plenipotentiary subjoined tlie following explana- 
toi-y declaration : " In proceeding to tlie exchange of the ratifications of the 
convention signed at Washington, on the 19th of April, 18.50, between her 
Britannic majesty and the United States of America, relative to the establish- 
ment of a communication by ship canal between the Atlantic and Pacific 
oceans, the undersigned, her Britannic majesty's plenipotentiary, has i-eceived 
her majesty's instruction to declare that her majesty does not understand the 
engagements of that convention to apply to Her majesty's settlement at Hon- 
duras, or to its dependencies. Her majesty's ratiflcation is exchanged under 
the explicit declaration above mentioned. Done at Washington, the 29th day 
of June, 1850. H. L. Bulwer." On the 5th of July, Mr. Clayton filed a memo- 
randum in the department of state acknowledging the receipt of the above, and 

44 



S46 GOVERNMENT. 

g 521. In inonarcliical countries the treaty-making 
power is found in the monarcli or king-, upon tbe theory 
that he is the soyereign. Before the introduction of 
legislative bodies as limitations upon the prerogative 
powers of the monarch, thereby changing absolute to 
limited monarchies, the king or sovereign was absolute 
in his authority, to make, adjudge and execute law. 
Being the state, and governing by the (irace of God, and 
not by the authority of the people, the power to make 
treaties of every description belonged absolutely to him 
by inheritance. When there began to be limitations 
imposed upon the authority or prerogative powers of 
the monarch, by the introduction of constitutions, or 
of legislative bodies, they operated upon the practice, 
but not upon the theory of governmental authority. 
The king under the British constitution, has absolute 
prerogative powers in every respect, where they have 
not been made subject to limitations by the consent of 
the sovereign. The i)ower of the king to make treaties 
of every character and description has not been thus 
limited ; therefore, it is said " that the prerogative of 
making treaties exist in the crown, in its utmost pleni- 
tude." ^ By parity of reasoning the treaty-making 
Ijower in the United States, should be vested in congress, 
as being that branch of the government in which the 
prerogative powers of the nation in respect to matters 
of national interest are iDerpetually present. If the king, 
under the British constitution, has this prerogative 
power " knit to the crown," in the absence of any con- 
stitutional provision here, this power would have been 
knit to that sovereignty in which the law-making power 
resides ; to be exercised through the agency by which 

that he understood that the British Honduras was not embraced in the treaty 
of the 19th April, but declined to affirm or deny tlie Britisli title; and that 
after signing such memorandum, wliicli he delivered to Sir Henry Bulwer, 
they immediately proceeded to exchange the ratifications of the treatj\ (Cong. 
Doc, o2d Cong., 2d sess.; Senate Ex. Doc. No. 12, Jan. 4, 1853.) Mr. Adams, 
minister of tlie United States in London, presented this point to Earl Russell, 
In declining to attach a declaration to the proposed convention of maritime 
law, August 23, 1861. Said he, "By the terms of the constitution, every treaty 
negotiated by tlie president of tlie United States must, before it is ratified, be 
submitted to tlie consideration of the senate. The question immediately 
arises, what is to be done with a declaration like that wliicii his lordship pro- 
poses to make? Is it a part of the treaty, or is it not? If it be, then is the 
undersigned exceeding his instructions in signing it; for the paper made no 
part of the project wliich he was directed to propose; and in ease he should 
sign it, tlie addition must be submitted to tlie senate for its advice and con- 
sent, togetlier witla the paper itself. If it be not, what advantage can tlie party 
niaking the declaration expect from it in modifying the construction of the 
project, when the senate have never had it before them for their approval? If 
It does, why did not the undersigned procure it to be incorporated into it? On 
tlie other hand, if it do not, why did he connive at the appearance of a desire 
to do it without effecting, the object. (Papers relating to Foreign AiTairs 
accompanying president's message, 1861, p. 12-3; see also Mr. Lawrence's Notes 
to Wheat., part 3, ch. 2, § 5.) 
1 Federalist, No. 75. 



OF THE PRESIDENT, ETC. 347 

tlmt power is constitutionally exercised. But the con- 
stitution provides otherwise ; and, therefore, the treaty- 
inakiiig- power is by it intrusted to the exercise of the 
X)resident, as a mere agent or minister of the nation, 
possessing- in himself no original or inherent authority, 
subject to the ratification of the senate, which as a body, 
is composed of the representative intelligence, prudence, 
wisdom and dignity of the nation. And as it is impos- 
sible to circumscribe within any definite limits this 
power, and leave it applicable to all exigencies which 
may nrise in the history of a nation, the constitution has 
made it general and unqualified. There are reasons 
why congress as a body are not adapted to the exercise 
of this power. It not unfrequently happens in the 
formation of treaties, that secrecy and dispatch are 
indispensable. The delays incident to large assemblies, 
the differences of opinion, the time consumed in debate, 
the utter impossibility of secrecy rendered congress 
wholly unfit for the purpose of diplomacy.^ 

g 522. The difference between the office of the king of 
England and that of the President of the United States, 
is also manifest in the treaty-making power. The presi- 
dent has the power, with the advice and consent of the 
senate, two-thirds of the members present concurring, 
to make treaties. But this authority in the president is 
derived from the constitution ; and he acts in virtue of 
its authority. But it is otherwise with the king. He is 
the sole and absolute representative of the nation in all 
foreign transactions. He can of his own motion, make 
treaties of peace, commerce, alliance and of every other 
description. Under the British constitution the preroga- 
tive of making treaties exists in the crown in the utmost 
plenitude ; and the compacts entered into by royal 
authority have the most complete legal validity and 
perfection, independent of any other sanction.^ Upon 
the theory of the British constitution, the king is sover- 
eign. He is the fountain of authority. Therefore, the 
treaty-making power belongs to him as the sole and 
absolute sovereign of the state. In this respect there is 
no comparison between the intended power of the presi- 
dent and the actual power of the British sovereign. 
Therefore, in determining the nature and extent of the 
authority of the president to make treaties or conven- 

1 story's Com. on Constitution, g 1509; 1 Kent's Com., pt. 1, 2 8, p. 165. 
s See Federalist, No. 75. 



848 GOVERNMENT. 

tions, no aid can be derived by consulting the British 
constitution, or the practice of the British sovereign. 

S 523. In practice, the senate of the United States are 
not consulted until the treaty has been formed and laid 
before them for ratification. It is in the option of the 
president to consult with the senate during the forma- 
tion of a treaty, and to take their advice in respect 
thereto ; and since it must meet with their approbation 
before it can become obligator^', it would l)e well for 
him to understand their views at as early a moment as 
possible. When the treaty is laid before the senate for 
their advice and consent, that body deliberates upon it 
with closed doors. It then can ratify the whole or any 
part of the convention ; or it can make such suggestions 
and modifications of it as it deems proper. But in such 
case the treaty must again be submitted to the president 
and the foreign party for their assent, before it can 
become obligatory. While the senate are in session 
upon the question of ratification, it is necessarj' that 
they have before them the facts and circumstances call- 
ing for such treaty and upon which such convention is 
based. Therefore it is common for them to require, and 
for the president to lay before them, all the otficial 
documents respecting such negotiations, to assist their 
judgment. But the house of representatives, having 
no voice in the ratification of treaties, have no consti- 
tutional right to insist on the production before them 
of such correspondence. When the treaty, to be 
executed, requires an appropriation of money, it is 
proper that the house should be informed of the pro- 
priety or justice thereof, before making the necessary 
appropriation.^ 

§ 524- Inasmuch as the power to make treaties is by 
the constitution committed to the president to be exer- 
cised under the advice and consent of the senate, it is 
proper that the power of appointing embassadors and 
other public ministers and consuls, should be committed 
to the same authority, to-be exercised in the same man- 

1 Rawle on the Constitution, ch. 7, pp. 63, 04. 

Treaties of peace, wlaen made by competent authority, are binding upon the 
wliole nation. If the treaty require tlie payment of money to carry it into 
effect, and the money cannot be raised but by an act of the legislature, the 
treaty is morally obligatory upon the legislature to pass the law; and to refuse 
it would be a breach of public faith. The department of the government 
which is intrusted by the constitution with the treaty-making power is com- 
petent to bind the national faith in its direction • for the power to make 
treaties of peace must be co-extensive with all the exigencies of the nation, and 
necesarily involves in it that portion of the national sovereignty which has 
the exclusive direction of diplomatic negotiations and contracts with foreign 
powers, as treaties made by that power become of absolute efflcacy, because 
they are the supreme law of the land. (1 Kent. Com. Lee. 8, § 3.) 



OF THE PRESIDENT, ETC. 349 

ner. Therefore, under the constitution the president 
nominates, and with the advice and consent of the 
senate, he appoints, this class of officers. This clause 
of the constitution^ also provides that the judges of the 
supreme court, and all other officers of the United 
States, whose appointments are not otherwise provided 
for by the constitution, and which shall be established 
by law, shall be nominated and appointed in the same 
manner. But it likewise authorizes congress to provide 
by law for vesting the power to appoint inferior officers 
in the president alone, in the courts of law, or in the 
heads of departments. What class of officers of the 
United States are to be included as inferior, has not yet 
been definitely determined. It would seem probable 
that those named in the clause could hardly be included 
as inferior officers. The office of embassador and public 
ministers, of judges of the supreme court and heads of 
departments are clearly principal offices in the govern- 
ment.^ 

g 525. Vacancies in office are liable to occur during 
the recess of the senate, and it may be important to the 
public that they should be filled immediately. There- 
fore the constitution provides that the president shall 
have power to fill up all vacancies that may happen 
during such recess, by granting commissions which are 
to expire at the end of the next session of the senate.^ 
But the term vacancies in the constitution does not 
include the creation of a new office, and the appoint- 
ment of an officer to fill it. It was during the recess 
of the senate that Mr. Madison, in 1813, appointed and 
commissioned ministers to negotiate the treaty of peace 
of Ghent. The office, though a constitutional one, that 
is, one contemplated by the constitution, was created 
during the recess of the senate, and filled by the 
appointment of the president, without the advice and 
consent of the senate ; therefore the question was 
raised, whether the president had constitutional author- 
ity so to do, there being no vacancy of any existing 
office ; and the senate, at their next session, it is said, 
entered their protest against such x)ractice ; and subse- 
quently it held that the president could not create the 
office and make such appointments during the recess of 
the senate.* 

1 Art. 2, g 2, cl. 2. 

2 See recent law of congress abridging the patronage of the president. App. 

3 Art. 2, § 2, cl. 3. 

4 See Sergeant on Const, ch. 231 ; 2 Executive Journal, pp. 415-500 ; 3d do., 297. 
See Story on Const., § 1539. 



350 GOVERNMENT. 

g 526. Connected with the subject of appointment is 
also that of the power of removal from office. The 
constitntion provides for filling vacancies which may 
occur during the recess of the senate, but it is silent as 
to the power of the president to remove from office. 
It would seem, in the absence of any provision to the 
contrary, that it should require the exercise of the same 
authority to remove an incumbent from office, that it 
takes to appoint him to office; and such seemed to 
have been the understanding of those who participated 
in founding the government* Notwithstanding the 
constitution makes no provision for removing an incom- 
petent or unfaithful officer from his official position, it 
is a power so manifestly essential to a prudent and wise 
administration of government, that its existence is 
deemed to be unquestionable. The writers in the Fede- 
ralist^ assume the necessary existence of this authority ; 
but they thought such power existed in the president 
only ivith the consent of the senate. That is, they assumed, 
without argument or doubt, that the consent of the 
senate would be necessary to remove, as well as to 
appoint, the incumbent. The silence of the constitu- 
tion clearly indicates that it was expected that removals 
would not take place, except as a public necessity, to 
secure fidelity and efficiency in the discharge of official 
trusts; and -it cannot be doubted that the practice of 
creating vacancies by removals from office, without any 
reference to the fidelity or efficiency of those removed, 
or to the better qualifications or character of those who 
are appointed to their places, is a violation, both of the 
letter and the spirit of the constitution ; is a corrupt 
and base usurpation of power never intended to be con- 
ferred by that instrument, upon the president or any 
other officer or department of government ; a jjrostitu- 
tion of the patronage of government, so corrupting in 
its purpose and influence, as to demand the impeach- 
ment of the high officer who uses it. It would never 
be used by an officer or party fit to be trusted with the 
administration of the public authority, and the super- 
vision of the public weal. The x>ractice of those 
intrusted with the administration of the general govern- 
ment has been, to recognize in the president of the 
United States the jjower to remove from office at his 
pleasure, those whom it required the advice and con- 
sent of the senate to appoint thereto. But as this power 

Federalist, No. 77. 



OF THE PRESIDEKT, ETC. 351 

exercised by the president is an assumed one, it cannot 
be donbted tliat congress has authority to regulate its 
exercise. And if there is one duty which it owes to the 
public to perform more speedily than any other, it is to 
place under wholesome restraint the exercise of this 
power of unnecessary removals from ofhce.^ 

§ 527. The general duties and powers of the president 
are enumerated in the third sectiou of the second article 
in these words, " He shall from time to time give to the 
congress information of the state of the union, and 
recommend to their consideration such measures as he 
shall judge necessary and expedient; he may on extra- 
ordiuary occasions, convene both houses or either of 
them ; and in case of disagreement between them with 
respect to the time of adjournment, he may adjourn them 
to such time as he shall think proper ; he shall receive 
embassadors and other jjublic ministers ; he shall take 
care that the laws be faithfully executed ; and shall 
commission all the ofBcers of the United States." 

g 528. The language of this provision of the constitu- 
tion, in form, distinguishes between the xmivers and the 

1 The exercise of this power by the president has grown up under the admin- 
istration of the general government from a very early date. During the first 
session of congress, in 1789, this question was very fully discussed on a bill intro- 
duced into tlie house of representatives " to establisli an executive department 
to be denominated the department of foreign affairs," which among other 
things provided, "That whenever the secretai-y shall be removed from office 
by the president of the United States, or in any other case of vacancy," etc. (1 
Stat, at Large, 28.) It was then contended by the advocates of tlais power in 
the president, tliat it belonged to him; that it resulted from the nature of the 
power, and from the convenience and even necessity of its exercise. Tliat in 
Its nature it was a part of tlie executive power, and was indispensable for a 
proper execution of the laws, and a regular administration of public affairs ; 
that the person in whose favor a majority of tlie people would unite in an 
election to the office of president had every presumption in his favor; that he 
must be presumed to possess integrity, independence and high talents; that it 
was impossible to suppose that he would abuse the patronage of the govern- 
ment, or his power of removal to tlie base purpose of gratifying a party, or of 
ministering to his own resentments, or that he would displace upriglit and 
excellent oiHcers for a mere difference of opinion ; that the public odium which 
would attach to such conduct, would be a perfect security against it. Tliat to 
make removals from .such motives, would be an impeachable offense. (3 
Story's Com. on Const., 'il?M and o9t.) Such was the opinion of Mr. Madison, 
who was at that time a member of the house. Subsequent history teaches a 
different lesson as to the effect of allowing a president the exercise of tliis 
power. In 1835, a committee of congress appointed to investigate this subject, 
made an able report on the subject of " Executive Patronage," on the 'Jtli of 
February of that year. " It is easy" (say they), " to see that the certain, direct 
and inevitable tendency of this practice is to convert the entire body of those 
in office into corrupt and supple instruments of power, and to raise up a host 
of hungry, greedy and subservient partisans, ready for every service, however 
base and corrupt. Were a premium offered for the best means of extending to 
the utmost the power of patronage; to destroy the love of country, and sub- 
stitute a spirit of subserviency and man worship; to encourage vice and to 
discourage virtue, and in a word, to prepare for the subversion of liberty and 
the establishment of despotism, no scheme more perfect could be devised. 
The disease is daily becoming more aggravated and dangerous, and if it be per- 
mitted to progress for a few years longer with the rapidity with which it has 
of late advanced, it will soon pass beyond the reach of remedy. The question 
now is, not how, or where, or with whom, the danger originated, but how it is 
to be arrested ; not the cause, but the remedy; not how our institutions and 
liberty have been endangered, but how they are to be i-estored." (Consult the 
practice of the administration under Andrew Johnson as acting president of 
the United States. See also, laws passed in 1867, to remedy the evil, in Appendix.) 



§52 GOVERNMENT. 

duties of the president; the jJOMJers being j^ermmi-yc; and 
the duties being mandatory — thus it is the duty of the 
president to give to congress, from time to time, infor- 
mation of the state of the union ; to receive embassa- 
dors and other public ministers ; to see that the laws of 
the United States are faithfully executed, and to furnish 
every officer of the nation with credentials of his author- 
ity to act as such officer ; therefore, the constitution 
provides that he sliall do these things. He has power 
to convene congress on extraordinary occasions ; and to 
adjourn them when the two houses cannot agree as to 
the time of adjournment; therefore, the constitution 
provides that he may do these things.^ 

g 529. But whether the president be required or per- 
mitted to exercise certain powers intrusted to the presi- 
dential office, he is legally bound to act in good faith 
for the highest good of the nation; and any willfal 
departure from his line of duty in the discharge of the 
high trusts committed to him, would subject him to 
censure, and, if necessary, impeachment. On extraordi- 
nary occasions he may convene both or either of the 
houses of congress. It is manifestly his duty to exercise 
this power in good faith, whenever the safety and wel- 
fare of the nation requires it ; and although, according 
to the language of the constitution, it is committed to 
his discretion to determine what occasions shall require 
the exercise of this power, he is nevertheless responsible 
for the exercise of a reasonably sound, and a lonafide 
discretion in the premises. If he act corruptly either in 
omitting to assemble congress, or in adjourning them 
after they are assembled, he would be liable to impeach- 
ment, even though in form, the power is to be exercised 
in his discretion. Thus, suppose, imder his power to 
adjourn congress to such a time as he might think 
proper, when there is disagreement between the two 
houses in respect to the time of adjournment, he should 
adjourn them beyond the time of the annual session ; 
or should adjourn them on any occasion of a temporary 
disagreement, for the purpose of getting rid of their 
presence in the administration of the government, and 
augmenting his influence in the same, there can be no 
doubt, that in so doing he would be guilty of an im- 
peachable offense ; and the congress which he should 

1 See a discussion of the constitutional discrimination of the powers and 
cuties of the president, by Alfred Conkling, published by Weare 0. Little, 
Albany, 1866. 



OF THE PRESIDEN'T, ETC. 353 

ILns corruptly attempt to prorogue, would not discbarge 
its duty to the people until it liad remained long enough 
tbereafter to impeacb, convict and remove Lim from 
ofiice, and to put a more faithful officer in his place. 

g 530. The president is required to receive embas- 
sadors and other public ministers. Embassadors and 
public miuisters are the only accredited medium tlirough 
which political relations can be maintained with foreign 
powers. Therefore the external administration of the 
l)ublic authority is most intimately connected with the 
ureafion and maintenance of these ministerial offices. 
l*he i)Ower to receive embassadors and foreign ministers 
carries with it also the incidental power to refuse to 
receive them for proper or just cause. The refusal 
to receive a foreign minister should be sustained by 
substantial reasons ; otherwise it would be deemed an 
imfriendly act toward the sovereign appointing him, 
and might provoke hostilities unless accompanied with 
proper explanations. The grounds of refusal may be 
personal to the minister ; or to the subject of the 
embassy ; or to the attitude of his sovereign toward 
the government refusing to receive him. 

§ 531. By the fourth section of the second article 
of the constitution of the United States, the president, 
vice-president, and all civil officers of the United States 
are liable to be removed from office on impeachment 
for, and conviction of, treason, bribery, or other high 
crimes and misdemeanors. The nature, object, and 
policy of impeachments have already been considered.^ 
There remain but these further considerations to be dis- 
cussed in respect thereto. First, what is the authority 
of the senate to arrest and bring before them, as the 
trying court, the person of the accused ; and, second, 
what is the effect of an impeachment by the house 
npon the official status ot the accused? The conduct 
of the presidential incumbent in the administration of 
the duties and powers of his Office, has been such 
during the years 18G5, 18GG, and 1867, as, in the minds 
of a very large and respectable class of citizens, to call 
for his impeachment and removal from office. It is 
contended by one class, that as soon as the house of 
representatives shall find articles of impeachment 
against him, he will be liable to be arrested and to be 
brought before the bar of the senate for trial. That 
being arrested, there will be inability on his part to dis- 

1 Aute §§ 275 to 2S2. 
45 



354 GOVERNMENT. 

charge the duties of his oflBce ; and, therefore, that it 
will be inenmbent upon congress to declare what officer 
shall act as ijresident until tbe disability be removed, or 
a president be elected. It is contended on the other 
hand, that the incumbent cannot be interfered with 
until after impeachment by the house and conviction by 
the senate. That during his trial on the impeachment 
he is to be left in the jjossession and exercise of all the 
powers incident to the office of president — and powers 
which he is charged by the house Avith abusing — both 
as the executive head of the nation, and as the com- 
mander-in-chief of the army and navy of the United 
States. That however dangerous it may be to leave in 
the hands of the individual incumbent, such powers 
during his trial, it is the fault of the constitution and 
must be submitted to by the nation. 

S 532. By the constitution of the United States the 
(*\ house of representatives, as a department of the gov- 
ernment, has the sole power of impeachment ;^ and the 
senate has the sole x)ower to try all impeachments f and 
congress has power to make all laws which shall be 
necessary and proper for carrying into execution such 
powers.^ The constitution, not having determined the 
manner in which the accused shall be brought before the 
bar of the senate for trial, or the manner in which 
the trial shall be conducted, has left it to congress to 
provide by law for the same. Congress can determine 
by law whether the i)residential incumbent shall be 
arrested on impeachment by the house, and whether, 
on being arrested, he shall be deemed to be unable to 
discbarge the powers and duties of his said office. The 
constitution has wisely left the question of inability to 
discharge the powers and duties of any given office, 
to be defined by the people of the nation, through their 
representatives in congress, that is, to be defined hj 
law. What shall amount to a disqualification to dis- 
charge the high trusts of the presidential office, could 
with safety be committed to no other department of the 
government ; for there is no other department so imme- 
diately from the people, and so directly responsible to 
them. There is no other department in which the 
sovereignty of the nation is so x>otentially and per- 
petually i)resent as in the congress of the United 
States. There may be many causes of inability in the 
presidential incumbent ; such as, dckness, insanity, 

1 Art. 1, § 2, cl. 5. 3 Art. 1, § 3, cl. 6. 5 Art. 1, § 8, cl. 18. 



OF THE PRESIDENT, ETC. 355 

doiibtful loyalty, and the like. Who except Congress, 
as the law-making- power, can determine the nature and 
extent of such inability ? The constitution contem- 
plates that this inability may be of a temporary dura- 
tion only, and may be removed ; or it maj' be permanent, 
continuing until the election of a succes.sor. Thus, 
congress may, by law, provide for the case of removal, 
deatli, resignatioi], or inahility, both of the president 
and vice-])resident, declaring what officer shall act accord- 
ingly until the (Usability he removed, or a irresident shall 
he elected? 

% 533. The provisions of the constitution upon this 
subject are plainly these : The i)resideut may be 
impeached by the house, and tried by the senate ; and 
congress may provide by law, for the manner in which 
he shall be arraigned and tried before the bar of the 
senate. If in the opinion of congress the presidential 
incumbent is disqualified from properly discharging the 
duties of the presidential otiice while on trial before 
the senate, it can provide by law for such inability by 
declaring what officer shall act as i)resident until such 
disability be removed, or a successor be elected. There 
can be no legal inability on the part of the president to 
discharge the duties of his otfice, except such as con- 
gress shall determine by law, and what shall amount to 
such constitutional inability necessarily rests in the 
judgment and discretion of congress. Their decision 
and action in the premises is conclusive ; and there is 
no appeal therefrom but to the people. The constitu- 
tion provides that in case of disability, etc., congress 
may provide for the administration of the presidential 
powers and duties, and has not provided what shall be 
deemed to amount to such disability ; but has given to 
no other department than congress any powers in rela- 
tion to the subject. The whole subject is hj the 
constitution committed to congressional discretion, and 
congress has full power to declare by law, what shall 
amount to disqualification, and who shall administer 
during the continuance of such inability, etc. 

% 534. It has been contended by some that the fourth 
section of the second article of the constitution, should 
be understood to read that the president, vice-president 
and all civil ofiicers of the United States shall be removed 
from office on impeachment for treason, bribery and other 
high crimes and misdemeanors ;, as well as for couvic- 

I Art. 2, 2 1, cl. e. ... 



856 GOVERNMENT. 

tion of tbe same. But such, evidently, is uot tlie legal 
import of that section. An ofhcer is not to be presumed 
to be guilty of the oifense for which he stands impeached, 
until he is found guilty, after a full trial before the trying 
court. He had no opportunity of appearing or being 
heard before the house. His accusers were alone heard 
there. Therefore, it cannot be supposed that the people 
intended to authorize the final removal from office of 
one, who was merely accused of a high offense, without 
giving him an opportunity of being heard in his own 
defense. It cannot be doubted, that under this jjrovi- 
sion of the constitution, the officer must be convicted as 
well as impeached before he can be permanently removed 
from his office. But while the incumbent cannot be 
removed until convicted, he may be, under a temporary 
inability created or declared by law to discharge the 
powers and duties of the presidential officer during his 
trial before the bar of the senate. It is not only within 
the province, but it is likewise the duty, of congress to 
Ijrovide by law for the discharge of the presidential 
power and duties during the occurrence of such a possi- 
ble event. 

CHAPTEE XYII. 

OF THE JUDICIAL POWERS. 

g 535. By the express provisions of the constitution 
of the United States, the judicial authority of the nation 
is vested in one supreme court, and in such inferior 
courts as congress shall establish.^ The scope of this 
X)ro vision in its administrative effect upon the nation, 
depends upon a just definition of the term "judicial 
power." As used in the constitution of the United 
States, it is to have only its technical signification, 
distinguishing it from the legislative and executive 
departments of the government. As a judicial power, 
its whole province is to be found in ascertaining and 
applying the law according to the intent and purpose 
for which it was made. The law being a rule of civil 
conduct prescribed by the legislative will of the nation, 
it becomes the duty of the judiciary to ascertain that 
will as applicable to the ease properly before the court, 
and to declare the requirements of the law therein, by 

1 Art. 3, 2 1, of the Const, U. S. 



OF THE JUDICIAL POWERS. 357 

its order, judgment or decree. Thus, it is tlie iDrovince 
of tlie legislature, as the term implies, to give to society 
or to the members thereof, the laws by which they are 
required to regulate their civil conduct. It is the prov- 
ince of the judiciary to ascertain that legislative intent, 
and by appropriate orders, judgments or decrees, to 
apply the law according to such ascertained purpose 
and eliect. The maxim, jus dicere, noiijus dare, express 
with forcible brevity, the i^rovince of the judge. The 
function of the judge only begins where that of the 
legislator ends. He has no mission to perform wiiere 
there is no law to be interpreted and applied. Until 
the legislator has spoken, and there is action or pro- 
posed action on the part of the subject, the judicial 
power must remain dormant. ^N'ot so with the legisla- 
tive department. It is required to precede everj^ other. 
It is necessarily rooted and grounded in ever-present 
sovereignty; not only providing- for its own orderly 
existence and action, but for the orderly existence and 
action of every other department. Under the consti- 
tution of the United States, it is intrusted with the 
creation and organization of the national courts. It 
can construct and reconstruct them at jileasure. It can, 
by law, prescribe the rules by which the judges are to 
be governed in the administration of justice. It can 
determine what shall be the qualificatious of the judges, 
and for what causes they may be removed by impeach- 
ment. 

§ 536. But the legislative, executive and judicial 
departments of the general g-overnment are created by 
the constitution of the United States; which, in all that 
it directs in respect to each, is the supreme law ; and 
each department in its administration, is limited to the 
authority conferred by that instrument. That is, 
the legislative department can exercise its powers only 
in respect to such subjects, as by the terms of the con- 
stitution, are committed to its jurisdiction; and to the 
making of such laws as are necessary and proper for 
carrying into effect the will of the nation as expressed 
or implied in that instrument. In enacting laws, con- 
gress must keep within the range of subjects committed 
to its jurisdiction ; and must authorize or require noth- 
ing to be done which will conflict with any of the 
positive provisions of the constitution. But keeping 
within these limitations and restrictions, congress can 
exercise the legislative discretion of the nation ; and 



358 GOVERNMENT. 

tLe jndiciary are bound to interpret and apply, in good 
faith, the laws enacted by congress, according to the 
ascertained legislative intent thereof. Thns, while 
the judicial powers of the government are distinct from, 
and independent of, the legislative and executive depart- 
ments, they can be exercised only in accordance with 
I'.des prescribed by law, for the ascertainment find 
application of the legislative will of the nation to affairs 
subject to its general jurisdiction. 

g 537. The judges of the supreme and inferior courts 
are nominated, and with the advice and consent of the 
senate, appointed by the president of the United States; 
and they hold their offices during good behavior.^ 
During the continuance of the ofhce to which they 
are appointed, they cannot be removed except upon 
impeachment and conviction of high crimes and misde- 
meanors. The object of this provision is to secure to 
the court that independence so essential to a just and 
faithful discharge of judicial duties. In many cases their 
jurisdiction is ascertained and secured by the constitu- 
tion itself, in which respect the judicial powers are co- 
ordinate with the legislative. But in .all other cases, 
their jurisdiction is fixed by law, which necessarily sub- 
ordinates them in their jurisdiction to the legislative 
will. It has been questioned whether, after the courts 
have been organized by law, and the judges have been 
appointed and their salaries have been fixed, congress 
has the constitutional authority to repeal or modify the 
law in such a manner as to work a removal of a judge 
from office. In 1801, congress passed an act reorgan- 
izing the judiciary and authorizing the appointment 
of sixteen new judges with suitable salaries, to hold 
the circuit courts of the United States in the differ- 
ent circuits created by the act.^ Under this act the 
circuit judges were appointed and performed their 
duties until the next year, when the courts estab- 
lished by the act were abolished, without making any 
provision for paying their salaries or continuing their 
offices.^ It was contended by some that inasmuch as 
such act abolishing these courts, in effect removed these 
judges from office, that it was in violation of the consti- 
tution which x)rovides, that they shall 'hold their office 
during good behavior. Judge Story was of the opinion 
that such act could not be reconciled with the terms or 

I Art. 2, ? 2, cl. 2 of Const. U. S. ; and Art. 3, 2 1, of same, 
a Act of iSOl, ch. 75. 
3 Act of 1S02, ch, 8. 



OF THE JUDICIAL POWERS. 359 

the intent of the constitution.^ But with due respect to the 
opinion of the learned author, it iis not conceivable that 
the franiers of the constitution intended to impose upon 
the nation a constitutional obligation to maintain for- 
ever an imperfect or defective organization of the inferior 
court, lest, perchance, they should disturb the oiiicial 
life of a judicial incumbent. It is a well-settled prin- 
ciple, that the incumbent of an office for life or for 
years, has no vested right or interest in the ofiice, or in 
his ])rosi)ective salary. He administers for the public, 
not for himself, and, in the absence of any constitutional 
inhibition, the office may be abolished at any time, with- 
out consulting the wishes or personal interest of the 
incumbent. By abolishing the office, the incumbent is 
not removed, but his official life ceases with the cessa- 
tion of the office. 

S 538. It cannot be doubted that it was the design of 
the authors of the constitution to commit to congress 
the organization and supervision of the national courts 
in every respect not fixed and settled by the constitu- 
tion itself The constitution provides that there shall 
be one supreme court and such inferior courts as con- 
gress may from time to time ordain and establish.^ It 
also provides for the original and appellate jurisdiction 
of the supreme court in certain cases; and for the ap- 
pointment of the judges; and the tenure of their office, 
etc. But it leaves the organization of these courts, the 
number of judges, and the rules by which they are to be 
governed, to the discretion of congress ; and without 
the exercise of which the courts themselves could have 
no existence. Everything pertaining to the organiza- 
tion, and the practical workings of these courts, is com- 
mitted necessarily, to the legislative discretion.^ 

§ 539. The legal rights of individuals cannot be pro- 
tected and enforced by government except through the 

1 Com. on Const., § 1633. 

2 .Jadgos ofinferlor courts do not include judges of the courts annointed in 
!.^:^n Itl'^tT'^'t «f the United States under the^author ty |?vln to^c^on^rlss to 
regulate the territories of the United States. Such are le"isHtive ^r>.,rt« 
created in virtue of the general sovereigntv which exists in tlie general so^^^^ 
Co'r^Z'cVr^LTliS'''''''' ^--^-ies.^1 Peter's S. C^^lrltlfii^riir^'s 

3 In a recent case (ex parte; in matter of A. H. Garland of Arkansas nefi- 
mo"foii f,f Uie l°iD"rfmeVon,-t"'^','7 "'^V^^- ^arr, ofLoufsiana^?efiUonet?ron 
taking the test oTtlfnrescri^r/^^^^ ^° practice as attorneyi. etc., without. 
cSn of nn nnnrnli fn ho^^^^^ Congress, as an essential part of the qualifl- 
md-Ps hPH fw th^^nn? /f ^"ti"ed to practice in such court, a majority of the 
tutilnil? T ts nn «nnmni?,'^ '/h''^^- Pi-escribing such test oath, was unconsti- 
ofle4l criticism and w^^^^^^^^ ?"« ^'"^^ «^nnot stand the test 

mi 'relr^.l^'ali:^. '"? '^"^"' ^"'^"^'^^'^ '"^ tL^'^v'e^t^i^^SS'f^r^I^fS: 
1 Dec. Term, 1SC6, not reported. 



360 GOVERNMElsTT. 

intervention of the judiciary to interpret and apply the 
laws for such purpose. In matters of internal adminis 
tration the executive cannot act in tlie execution of the 
law, except iu pursuance of the order, judgment, or 
decree of the courts. In all questions directly aftecting- 
the vested or natural rights of individuals, the action of 
the judiciary necessarily precedes that of the executive, 
for the purpose of ascertahiing the law, and directing 
its application to the x)urpose intended. But in respect 
to questions aflecting the political rights of i)olitical 
states or communities, the judiciary cannot properly 
interfere. Whether the inhabitants of a territory shall 
be incorporated into a political state ; and upon Avhat 
condif;ions ; and subject to what restrictions ; are ques- 
tions of legislative discretion, which the judiciary can- 
not review. It is the same generally, with all questions 
committed to the discretion of congress, which do not 
directly affect the natural or vested rights of the citizen.^ 
.§ 540. The judicial power of the United States ex- 
tends to all cases, in law or equity, arising under the 
constitution and laws of the United States, and treaties 
made under their authority; to all cases aftecting embas- 
sadors, other public ministers and consuls ; to all cases 
of admiralty and maritime jurisdiction ; to controversies 
to which the United States shall be a party ; to contro- 
versies between two or more states ; between a state 
and citizens of another state; between citizens of dif- 
ferent states ; between citizens of the same state claim- 
ing lands under grants from diflFerent states ; and 
between a state, or the citizens thereof, and foreign 
states, citizens or snbjects.^ By the eleventh amendment 
to the constitution it is provided, however, "that the 
judicial power of the United States shall not be con- 
strued to extend to any suit in law or equity commenced 
or prosecuted against one of the United States by citi- 
zens of another state, or by citizens or subjects of any 
foreign state." ^ As the judicial power of the United 
States extends only to cases arising under the constitu- 
tion and latvs of the United States, etc., it is first neces- 
sary to consider what constitutes a case, within the 
meaning of this clause. To constitute a case, there 

1 See the recent discussions before the supreme court on the application of 
Georgia for a writ of injunction against Stanton, Grant and Pope, to prevent 
the enforcement of the reconstruction act of 1867, and which was denied by the 
court. 

2 Art, 3, ? 2, cl. 1, Const. U. S- 

3 See Story's Com. on Const., § 168-5; Fowler v. Lindsey, 3 Dall. Rep., 411; Slate 
New York v. Connecticut, 4 Id., 1, 3,6; Uniled States \ . I'eters, 5 Cranch, 115, 139 ; 
Osborn v. Bank of United States, 9 Wheat. Rep., 846. 



OF THE JUDICIAL POWERS. 361 

must be the proper parties, having rights to be adjudi- 
cated : or, at least, capable of having rights to be 
adjudicated, arising in the manner, or between the par- 
ties, prescribed in the constitutiou. And since there 
can be no case for the exercise of judicial power by 
the national judiciary, where the proper parties do not 
exist ; and since there can be no proper party to au 
action or suit, where the legal or equitable rights of a 
legal person have not been, or are not threatened to be, 
invaded, the principles involved in a case for the exer- 
cise of judicial power by the national judiciary are easy 
to be ascertained and applied.^ 

§ 541. In plain language, a case is an action or suit, 
in law or equity, instituted according to the regular 
course of judicial proceedings.^ As such, there must be 
the i)roper parties to the action or suit ; that is, there 
must be before the court a legal person as a party, 
whose rights are to be protected or vindicated. Any 
])erson may be such a party whose legal rights, arising 
under the constitution, or laws of the United States, or 
treaties made in pursuance thereof, have been wrong- 
fully invaded or withheld by a person legally responsible 
for such wrongful conduct. So also may a person be a 
I)arty and bring his case before the national judiciarj-, 
■where his protection, or the enforcement of his rights, 
affect embassadors, other public ministers or consuls ; or 
where they constitute a case for admiralty and maritime 
jurisdiction, by arising upon the high seas, which are 
the joint property of nations, whose rights and jnlvi- 
leges relative thereto, are regulated by the law of 
nations and treaties.^ Beyond these cases, the consti- 
tution has declared who only can be parties to suits 
before these national tribunals. But these parties must 
be persons whose legal or equitable rights have been 
withheld, or have been invaded ; or are in such immi- 
nent danger as to call for the protective remedies admin- 
istered in equity. 

1 "It is clear that the Judicial department is authorized to exercise jurisdic- 
tion to the full extent of the constitution, laws and treaties of the United 
States, whenever any question respecting them shall assume such a form tliat 
the judicial power is capable of acting upon it. When it has assumed such a 
form, it has then become a case ; and then, and not till then, the judicial power 
attaches to it. A case, in the sense of the constitution, arises when some sub- 
ject touching the constitution, laws or treaties of the United States, is submitted 
to the courts by a party who asserts his rights in the form prescribed by law." 
(Stoi-y on Const., g 161G, and notes.) "A case is a controversy between parties, 
which has taken a shape for judicial decision." (Marsh. Speech, 5 Wheat. Rep., 
app., 16; see also Osborn v. The Bank of the United Slaten, 9 Wheat. Rep. 819.) 

.2 Story on Const., § 1016. 

3 Chisholm v. The State of Georgia, 2 Ball. Rep,, 419, 475; 2 Pet. Cond. Rep., 
633, 671. 

46 



S62 GOVERNMENT. 

% 542. Oases arising under tlie constitution are distin 
gnislied from tliose arising under tlie laws of the United 
States in this : The constifcntion of the United States 
confers certain powers, grants certain privileges, and 
secures to citizens protection in the enjoyment of certain 
rights, independent of any particular statutory enact- 
ment. Therefore, cases may arise under such powers, 
privileges, and rights: as if a citizen of one state 
should be denied the privileges of a citizen in another 
state; or if a state should attempt to make paper 
money a legal tender for the payment of debts ; or if a 
person charged with a crime against the United States, 
should be denied the right of trial by jury ; or if a sol- 
dier in time of peace, should be quartei'ed in any house 
without the consent of the owner thereof; for an injury 
such as these, there would be a case arising under the 
constitution. On the other hand, cases arising under 
the laws of the United States are such as grow out of 
the legislation of congress within the scope of their con- 
stitutional authority, whether they constitute the right, 
the privilege, the claim, protection or defense of the 
I)arty by whom they are asserted. Wherever in a judi- 
cial proceeding any questions arise touching the validity 
of a treaty, or statute, or authority exercised under the 
United States, or touching the construction of any clause 
of the constitution, or of iiuj statute, or of any treaty of 
the United States, or touching the validity of any 
statute or authority exercised under any state on the 
ground of any repugnancy to the constitution, laws, or 
treaties of the United States, it has been invariably held 
to be a case to which the judicial power of the United 
States extends.^ A case in law or equity consists of the 
right of the one party as well as of the other, and may 
be said to arise under the constitution or a law, or a 
treaty of the United States whenever its correct decision 
depends on the construction of either.^ 

§ 543. The reasons why the constitution conferred the 
jurisdiction contained in article three, section two, is 

t See Marbury X.Madison, 1 Crancli., 137, 173, 174; Story's Com. on Const., g 16i7; 
Martin v. Hunter, 1 Wheat. Rep., 304; Cohens v. Virginia, C Wheat. Rep , 264; see 
also Wheat. Rep., pp. 1 and 738. 

2 See Judiciary act of 1789, oh. 20, g 25; see Story's Com., supra, g 1648. 

The judicial power of tlie federal government extends to all cases in law and 
equity arising under the constitution. Now the powers granted to the federal 
government, or prohibited to tlie states, being all enumerated, tlie cases aris- 
ing under the constitution can only be such as arise out of some enumerated 
power delegated to the federal government, or prohibited to those of the several 
states. These general words include wliat is comprehended in the next clause, 
namely, cases arising under the laws of the United States, etc. (See 1 Tuck. Bl. 
Com. App., 418; see discussion of tliese questions by Rawle on the Const., 
ch. 28.) 



OF THE JUDICIAL POWERS. 363 

forcibly expressed by Chief Justice Jat^ as follows: 
" It may be asked what is the precise sense and latitude 
in which the words * to establish justice,' as here used, 
are to be understood? The answer to this question will 
result from the provisions made in the constitution on 
this head. They are specified in the second section of 
the tliird article, where it is ordained that the judicial 
I)ower of the United States shall extend to ten descrip- 
tion of cases, namely: 1. To all cases arising under 
this constitution ; because the meaning', constructiou 
and operation of a compact ought always to be ascer- 
tained by all the parties, not by authority derived 
only from one of them. 2. To all cases arising under 
the laws of the United States; because, as such laws, 
constitutionally made, are obligatory on each state, the 
measure of obligation and obedience ought not to be 
decided and fixed by the party from whom the}^ are 
due ; but by a tribunal deriving authority from both 
parties. 3. To all cases arising under treaties made by 
their authority; because, as treaties are compacts made 
by. and obligatory on, the whole nation, their operatiou 
ought not to be affected or regulated by local laws, or 
courts of a part of the nation. 4. To all cases affecting 
embassadors, or other public ministers and consuls ; 
because, as these officers are of foreign nations, whom 
this nation are bound to protect, and treat according to 
the laws of nations, cases affecting them ought only 
to be cognizable by national authority. 5. To all cases 
of admiralty and maritime jurisdiction; because, as the 
seas are the joint property of nations, whose rights and 
privileges relative thereto are regulated by the law of 
nations and treaties, such cases necessarily belong to 
national jurisdiction. 6. To controversies to which the 
United States shall be a party ; because, in cases in 
which the whole people are interested it would not be 
equal or wise to let any one state decide and measure out 
the justice due to others. 7. To controversies between 
two or more states ; because domestic tranquillity requires 
that the contentions of states should be peaceably ter- 
minated by a common judicatory ; and because, in a 
free country justice ought not to depend on the will of 
either of the litigants. 8. To controversies between a 
state and citizens of another state ; because, in case 
a state — that is, all the citizens of it — has demands 
against some citizens of another state, it is better that 

1 ChUholm V. The State of Georgia, 2 Dall. Rep., 419, 475. 



S64 GOYERJ^MENT. 

slie sliould prosecute their demands in a national court, 
than in a court of the state to which those citizens 
belong; the danger of irritation and criminations, arising 
from apprehensions and suspicions of partiality, being 
thereby obviated ; because, in cases where some citizens 
of one state have demands against all the citizens of 
another state, the cause of liberty and the rights of men 
forbid that the latter should be the sole judges of the 
justice due to the former; and true republican govern- 
ment requires that free and equal citizens should have 
free, fair and equal justice. 9. To controversies between 
citizens of the same state claiming lands under grants 
of different states; because, as the rights of tlie two 
states to grant the land are drawn into question, neither 
of the two states ought to decide the controversy. 
10. To controversies between a state or the citizens 
thereof, and foreign states or citizens or subjects; 
because, as every nation is responsible for the conduct 
of its citizens toward other nations, all questions touch- 
ing the justice due to foreign nations oi' people ought 
to be ascertained by, and depend on national authority."' 

^ 544. Oases may arise undei- the laws of the United 
States by implication, which may be brought before the 
national judiciary for redress. If an officer is ordered 
to arrest an individual, and he does so by the legal 
authority of the nation, the law implies that he shall 
be protected in obeying such authority. It is no 
unusual thing for an act of congress to imply, without 
expressing, such exemption from state control. Col- 
lectors of revenue, carriers of the mails, operators in 
the mint establishment, and other national institutions 
of a public nature, are examples ; and although there 
is no provision of congress expressly i)rotecting them, 
such protection is necessarily incidental to the office, 
and is implied in the acts creating it."^ 

S 545. The judicial power extends to all cases in law 
and equity. " There is hardly a subject of litigation 
between individuals which may not involve those 

1 Mr. Madison saj^s that cases arising under tlie constitution in the sense of 
tlae above clause, are of two descriptions. One of them comprehends the cases 
growing out of the restrictions on the legislative power of the states, such as 
emitting bills of credit, making anything but gold and silver a tender in pay- 
ment of debts. Should this prohibition be violated, and a suit between 
citizens of the same state be the consequence, this would be a case arising 
under the constitution before the judicial power of the United States. A 
second description comprehends suits between citizens and foreigners, or 
citizens of different states, to be decided according to the state or foreign laws, 
but submitted by the constitution to the judicial power of the United States. 
Virginia Resolutions and Report, January, 1800, p. 28. 

2 See Story's Com. on Const., a 1658 ; Osborn v. Bank of United States, 9 Wheat. 
Kep., 846, 863, 866. 



OF THE JUDICIAL POWERS. 365 

ingredients of fraud, accident, trust, or hardship, wLicli 
would render the matter an object of equitable rather 
than legal jurisdiction, as the distinction is established 
in several of the states. It is the peculiar province of 
a court of equity to relieve against what are called hard 
bargains. These are contracts in which, though there 
may have been no direct fraud or deceit sufficient to 
invalidate them in a court of law, yet there may have 
been some undue and unconscionable advantage taken 
of the necessities or misfortunes of one of the parties 
which a court of equity would not tolerate. In such 
cases, where foreigners were concerned on either side, 
it would be impossible for the federal judicatures to do 
justice without equitable as well as legal jurisdiction. 
This reasoning may not be so palpable in those states 
where the formal and technical distinction between law 
and equity is not maintained, as in this state, wbere it 
is exemplified by every day's practice.^ 

g 540. The supreme court has original jurisdiction in 
all cases affecting embassadors, other public ministers 
and consuls, and those cases in which a state is a party. 
Such cases can only be brouglit in the supreme conk 
of the United States. But all other cases of which the 
national judiciary can take cognizance, may, under 
the regulations of congress to that effect, be commenced 
in the subordinate or inferior courts of the United 
States. The supreme court is to have appellate juris- 
diction both of the law and fact in all such cases, 
except where, under the regulations of congress, it is 
otherwise provided.'^ The essential element ol" an appel- 
late jurisdiction is the right to revise and correct the 
proceedings in a cause already instituted, and does not 
create the cause.^ It necessarily implies that the 
subject-matter has already been instituted in, and acted 
upon by, some other court whose judgment or proceed- 
ings are to be revised. This appellate jurisdiction may 
be exercised in a variety of forms, as the legislature 
may prescribe. The most usual modes are by "writs of 
error and by appeal. A writ of error is a common law 
process to remove the record of the inferior court into 
the superior or appellate court for a re-examination of 
the law only. An appeal is a process of civil law origin, 

1 Alexander Hamilton in the Federalist, No. 80, p. 447. 
■ 2 Art 3, J 2, cl. 2. Story's Cora, on Const., i} 1763-176S. 
3 Story's Com. ou Const., 'i 1761; 1 Cr. 175; 2 Pet., 449. 



366 GOVERNMENT. 

wliicli briDgs np the whole case, subjecting the fact as 
Tvell as the law to a re-examluatiou au^ re-trial.^ 

S 547. By the language, "the supreme court shall 
have appellate jurisdiction both as to law and fact," is 
not meant that the supreme court may on appeal review 
the decisions of a jury in mere matters of fact, and thus 
in effect destroy the validity of their verdict ; but that 
in cases of equity and admiralty jurisdiction the supreme 
court may review the facts as well as the law.^ The 
appellate jurisdiction of the supreme court extends to 
all cases determinable in the different modes ; some in 
the course of the common law, and some otherwise. 
In reviewng those which are determinable according to 
the course of the common law, the court will review 
only questions of law ; while in reviewing equity and 
admiralty cases, are-examination of the facts is according 
to usage. If any doubt remains as to this construction 
the following amendment of the constitution sets the 
question at rest. Article seven of the amendment ijro- 
vi(les that " in suits at common law, where the value in 
controversy shall exceed twenty dollars, the right of 
trial by jury shall be preserved: and that no fact tried 
by a jury shall be otherwise re-examined in any court 
of the United States, than according to the rules of the 
common law. 

§ 548. The trial of all crimes, except in cases of 
impeachment, shall be by jury, and such trial shall be 
held in the state where the said crimes shall have beeu 
committed. But when not committed within any state, 
the trial shall be at such place or places as the congress 
may by law have directed.^ This provision of the con- 
stitution applies only to the civil administration of the 
government. Whenever, from invasion or rebellion, 
the public safety may require the administration of 
martial authority, criminals may be tried, convicted 
and executed without the intervention of a jury. In 
the language of Judge Stewaet, in refusing the writ 
of habeas corpus to C. L. Vallandigham on the ground 
that the ijublic safety demanded his arrest and punish- 
ment: "Those who live under the protection and enjoy 
the blessings of our benignant government, must learn 
that they cannot stab its vitals with impunity. If they 
cherish hatred and hostility to it, and desire its subver- 
sion, let them withdraw from its jurisdiction, and seek 

1 See 3 DalL K., 321 ; 9 Wheat. Rep., 409-412 ; Story's Com. on Const., J 1762. 
s Federalist, Nos. 81 and 83 ; Story on Const., a 1763. 
a Art. 3, 2 2, cl. 3, Const. U. S. 



OF THE JUDICIAL POWERS. 367 

the fellowship and protection of those with whom they 
are in sympathy. If they remain with iis while they are 
not of us, they must be subject to such a course of 
dealing* as the great law of self-preservation x>i'escribes 
and will enforce. And let them not complain if the 
stringent doctrine of military necessity should find them 
to be legitimate subjects of its action." ^ 

^ 549. The right of trial by jury has from very early 
times, been insisted upon as the great bulwark of civil 
and political liberty ; and has been watched with 
unceasing jealousy, and solicitude. This right consti- 
tutes a fandamental article of Magna Gharta^ which is 
that no man shall be arrested, nor imprisoned, nor ban- 
ished, nor deprived of life, except by the judgment of his 
peers, or by the law of the land. And a trial by jury is 
understood to mean — generally — a trial by a jury of 
twelve men, impartially selected, and who must unani- 
mously concur in the guilt of the accused before a legal 
conviction can be had. The object to be gained by a 
jnry trial in criminal cases is to guard against the spirit 
of oppression and tyranny on the i)art of rulers ; and a 
violence and vindictiveness on the part of the people. 
The principle involved in jury trials is forcibly expressed 
by Mr. Justice Smith in WilUs v. Long Island Railroad 
Companif in these words. " The wisdom of the time- 
honored rule of the common law which refers questions of 
fact to, the jurors, and questions of law to the judge, is 
not more conspicuous in any class of cases than those 
which involve questions of negligence. Oases of that 
nature frequently come before the courts in which men 
of equal intelligence and judgment differ in their conclu- 
sions, simply because they differ in experience and habits, 
in temperament or mental organization. A course of con- 
duct which seems sufficiently careful to a self-reliant 
man, who is accustomed to act promptly, may appear 
reckless to one who is usually circumspect and hesita- 
ting. That «i'6Trt^c judgment which is the result of the 
deliberations of twelve men of ordinary sense and expe- 
rience is recognized by our jury system as a juster stan- 
dard than the judgment of one man of equal experience 
and sense in the determination of questions of fact, and 
it is especially valuable in the decision of questions of 
negligence." 

1 See State Papers of Abraham Lincoln, by Raymond, p. 3S5. 

2 Masina Charta, cb. 23 ofU Henry III. 

3 31 N. Y., G70, 679. 



368 GOVERNMENT. 

S 550. Trials for crimes must be had in the state where 
they are committed. The ol^ject of this clause is to 
secure a trial with the least possible incouveuience to the 
accused ; that is, that he shall not be compelled to 
go to a trial in some distant state away from friends, 
witnesses and neighborhood, and thus be subjected to the 
indifference, and perhaps, prc'judice of strangers to 
who.m he is only known as an accused person, with whom 
they have no sympatli3% and in whom, no interest. But 
while this provision of the constitution is designed to 
secure to individuals these benetits, it may likewise, 
sometimes contribute to embarrass the admiuistration of 
public justice. During the great rebellion, the public 
seiitimeut of those states which went into it was such, 
that however guilty of treason the conspirators were, it 
was exceedingly difficult, if not impossible, to convict 
them before a jury of those states. The consequence 
has been, that those who were principally guilty of 
fomenting and carrying on the rebellion against national 
authority, and treason against the nation's life, have 
escaped with impunity. The chief of the rebellion, act- 
ing as ]3resident of the assumed confederacy, their 
executive head, and the commander-in-chief of their 
army and navy may unquestionably be prosecuted for 
treason in any state into which he sent his array to levy 
war against the United States. And it must be deemed 
to be the fault of the executive department of the national 
government, that he has not been indicted and tried in 
the district in which Gettysburg in Pennsylvania is 
situated, where his rebellious army was defeated by the 
national forces in July, 1863. " To constitute the crime 
of treason," say the court in ex jiarte Bollman ^ " war 
must be actually levied against the United States. To 
levy war, and actually to levy war, are distinct offenses. 
It is not the intention of the court to say, that no indi- 
vidual can be guilty of this crime who has not appeared in 
arms against his country. On the contrary, if war be 
actually levied, if a body of men be actually assembled for 
the purpose of effecting by force a treasonable purpose, 
all those who xjerform any part, however minute, or 
however remote from the scene of action, and who are 
actually leagued in the general conspiracy are to be 
considered as traitors." Under this construction of the 
law of treason by the supreme court of the United States, 
there could have been no legal difficulty in the way 

1 4 Cranch, 126; see also Uniied Slates v. Burr, 4 Id., 469-508, 



INTER-STATE ADMINISTRATION. 369 

of indicting and trying the master spirits of the rebellion 
in any state where, by their aid and procurement, trea- 
son against the United States was committed. And 
besides tliis, many acts of treason were committed nnder 
tlie commissions of the rebel government, in territories 
outside of state governments; thereby giving authority 
to congress to provide by law, for trying the rebel chief 
and his co-rebels for these acts of treason, in any state 
of the uuion.^ 



CHAPTER XYIII. 

IXTER-STATB ADMINISTEATION. 

S 551. The states being political corporations, 
instituted or continued as instruments to administer 
national authority, in respect to local and domestic 
Interests within their respective limits, although inde- 
l)endent of each other in their local administration, are 
not independent and foreign to each other in the author- 
ity by which they administer. Each state has sole 
jurisdiction or administrative authority within its own 
borders ; but each possesses and administers the same 
authority, to wit, the authority of the nation. Conse- 
quently the public acts, records and judicial proceedings 
in each of the several states are evidence of the action, 
and determination of the same authority. No matter 
how much the several states may differ in the details 
of state administration, or in forms and modes of pro- 
ceedings, they are each legal and binding within their 
respective jurisdictions, in virtue of the authority which 
is present in ever^'- state. It is proper, therefore, to 
require the several states to give faith and credit to that 
which has been authoritatively settled in another state. 
Accordingly article four, section one, provides that 
•' full faith and credit shall be given in each state to the 
I)ublic acts, records, and judicial proceedings of every 
other state ; and that congress may, bj^ general laws 
l)rescribe the manner in which such acts, records and 
l)roceedings shall be proved, and the effect thereof" 
The purpose of this provision is to carry into effect the 
theory of the presence of but one authority in the seve- 
ral states, b}' which the public acts, records and judicial 

» See Art. 3, § 2, cl. 3, of the Constitution of the United States. 
47 



870 GOVERNMENT. 

proceedings are liad. It is intended to give conclusive 
efficiency throughout alJ the states, to that authority, 
which had, in due form, become conclusive in any of 
tliera. It is to remove all the public acts, records, and 
judicial proceedings of the several states, from the cat- 
egor}' of those which, in the language of jurisprudence, 
are denominated "foreign," as contradistinguished 
from " domestic " judgments and the like, — that the 
jurisdiction of the court being established, the judgment 
thereof shall be conclusive upon the merits.^ 

g 552. At the time the constitution was adopted, 
there had been a diversity of opinions in the English 
courts as to the credit to be given to a foreign judg- 
ment. It was generally conceded, that when the foreign 
judgment came in question collaterally, it was to be 
deemed conclusive ; but when such judgments were put 
in suit, and made the subject of an action, the prevail- 
ing opinion seemed to be, that they were only iirima 
facie evidence of a debt, and had only the force of a 
simple contract between the parties.^ Mr. Staekie 
was of the opinion that the better authority in the 
courts of England, was in favor of the conclusiveness 
of foreign judgments, where they were made the 
basis of an action or suit ; and remarked, that the prin- 
ciple on which the conclusive quality of judgments and 
decrees rested applied as well to foreign as to domestic 
judgments.^ The American authorities hold that a 
foreign judgment, when i)roduced as the foundation of 
an action in the courts of this country, are never more 
than prima facie evidence ; and that they may be 
impeached by showing that they were irregularly 
obtained, or, indeed, uj)on almost any ground which 
could have constituted a defense to the original suit."* 
But all American cases agree that when the foreign 
judgment comes only incidentally in question, it is 
conclusive. The several states in the American union 
are not to be deemed foreign states in respect 
to each other ; nor are the supreme or circuit courts 
of the United States to be so considered in the state 
courts.^ 

1 See Story's Com. on Const., ? 1309, ei seg.: see 1 Phillipps on Ev., Cowen and 
Hill's notes, pp. 351-a5o ; also 3 I'd., pp. 895-893, note 636. 

2 1 Phil. Ev., ch. 3, § 2, p. 352, and authorities. 

3 1 Stark. Ev., 6 Am. Ed., p. 228; Cowen & Hill's notes to Phil. Ev., note 636 
top. 353. 

* See Cowen & Hill's notes to Phil. Ev., No. 636. 

6 See collection of authorities by Cowen & Hill in their notes to Phillipps' 
Evidence under the head of Foreign Courts, note 638, to p. 353. 



INTER-STATE ADMINISTRATION. 371 

g 553. In pnrsnance of tlae authority vested in con- 
gTess by tlie constitution, it passed an act^ in which, 
after ])roviding fou the mode of proof, it provided that 
•'the said record and judicial i)roceedinii:s, authenticated 
as aforesaid, shall have such faith and credit given to 
them in every court within the United States, as they 
Lave, by law or usage, in the courts of the state from 
whence the said records are or shall be taken." The 
provisions of the act of 1790 are likewise extended to 
the records and judicial proceedings of the several territo- 
ries of the United States, and to the countries subject to 
the jurisdiction of the Uidted States.^ In respect to this 
clause of the constitution, there have been two classes of 
construction upon the words " and the effect thereof." 
Some bad read the clause in this sense: that congress 
shall have the authority to lu'escribe the effect of the 
required proof or authentication ; others read it that 
congress shall have authority to prescribe the effect of 
the public acts, records and judicial proceedings in the 
states, when they shall be duly proved by proper 
authentication.^ But the prevailing opinion is, that the 
hitter construction should be adopted, and such is 
the character of legislation by congress upon that sub- 
ject. By the uniform course of decisions in the several 
states, it is now well settled that the judgment of any of 
the state courts is of the same dignity in every other state 
as in the state where rendered; and that it is or is not 
conclusive in its operation as evidence, in the several 
stnte courts, according to its character in the state 
where pronounced ;* and that such judgments maybe 
Avholly impeached by showing that the court rendering 
it had not jurisdiction.^ 

§ 554. Citizens of a state are citizens of the United 
States residing within the limits of the particular state 
of which they are citizens. There are no particular state 
laws creating citizenship, nor under the constitution of 
the United States, can such distinctions be maintained. 
A state as a politicnl cor[)oration instituted for special 
and local purposes, cannot create state distinctions in citi- 
zenshi[>. Citizens of the nation residing within the limits 
of any of the states, are, under the national constitution, 
obliged to maintain their political connection with the 
national government, through the state corporation. And 

1 May 26, 1790, cli. 11 ; 2 L. U. Statutes, 102. 

2 3L. U. Slatutes, 621. 

3 9 Mass. Rep., 462; Cook's Rep., 420; 1 Pet. C. C. R., 74; 17 Mass., 510. 

4 Cow. & Hill's notes to Phill. Ev., note 638 to p. 353, and authorities. 

6 1 Pet. Rep., 328, 310; 9 id., 157; 10 Wend., 75; 13 id., 407 ; 1 Mass., 1U3; 1 Paine, 55. 



872 GOVERNMENT. 

the constitutional rights of every citizen of the nation 
are snpreuiely binding upon these state corporations. 
The logic is simply this : The nation, in virtue of its 
inherent sovereignty, has ordained and established 
a constitutional government, which in its authority, as 
the representative of the pation, is supreme over all. 
In its ordinance of government it has provided two 
modes of administration in character and jurisdiction — 
one general, and one local ; — that is, it has provided for 
the institution and maintenance of a general or national 
administration, to be participated in by the citizens of 
the nation at large ; and for the institution and main- 
tenance of local or state governments, to be partici[)ated 
in by the citizens of the states respectively. By the 
constitution of the United States, the nation has made 
these state corporations the instruments by means of 
which the national citizen avails himself of his right to 
I)articipate in the administration of national authority ; 
and it has secured to him the privilege of exercising his 
national political rights through these state institutions. 
Therefore, the constitution jjrovides, that the citizens of 
each state, shall be entitled to all privileges and immu- 
nities of citizens, in the several states. Every citizen 
of a state being also a citizen of the nation, has national 
rights, and national authority extending over every 
inch of the national domain, and over every mem- 
ber of the national family ; therefore, he has a political 
right to inhabit whatever state he pleases and to enjoy 
all inlvileges and immunities of a citizen therein.^ 

,§ 555. The constitution also provides that a person 
charged in any state with treason, felony, or other crime, 
who shall flee from justice, and be found in another 
state, shall on demand of the executive authority of the 
state from which he fled, be delivered up to be removed 
to the state having jurisdiction of the crime.^ The neces- 
sity of this x)ro vision arises from the local character 

1 A citizen of the United States has national riglits co-extensive with the 
jurisdiction of the national government. He has the same authority over 
national interests in one part of the union as in another. By his representa- 
tive in congress, lie speaks and acts for the whole union. By the constitution 
of the United States, which is both the fundamental and supreme law of 
the nation, each citizen is invested with this political authority over every 
part of the national domain, and entitled to all privileges and immunities of 
citizens, in the several states; that is, tlirougliout tlie nation. Where, then, 
was the foundation for the pretended right of secession, which involved the 
right to exclude from the state the authority of the nation? Twenty mil- 
lions of national citizens in the north and west had national authority over, 
and national interests in, South Carolina; rights to which they were horn 
under the national constitution, and rights which they had exercised ever 
since they were born. How, then, could the people of South Carolina divest 
these twenty millions of their national rights within the limits of that por- 
tion of the national domain ? 

2 Art. 4, g 2, cl. 2, Const. U. S. 



INTER-STATE ADMINISTRATION. 373 

of state antlioriry. A state government can exercise no 
autliority beyond tlie limits of the state. Its laws are 
only bindin<»- npon those who are fonnd within its juris- 
diction, either in person or property. Consequently, 
should a person violate a state regulation, or commit a 
criminal act, and thenleave thostate before beingarrested 
or required to answer for it, he would be beyond the 
reach of its authority or power to i)unish. Nor would 
he be liable in the state in which he might be found, for 
acts committed beyond its jurisdiction. And inasmuch 
as, by the provisions of the constitution, no state can 
enter into anj^ agreement or compact with another for 
any purpose, this provision became indispensable to 
guard ngainst such evils. It was necessary for an author- 
ity that knew no state lines, but extended throughout 
all the states and territories of the Union, to provide for 
bringing to trial and yunishmeut, escaping criminals, or 
fugitives from justice. 

g 550. At the formation of the general government, 
the people of the United States were residing under 
state governments, each of which was local and inde- 
pendent of the other. The people of these states were 
one nation. But as a nation, they had no government 
by which to express or execute the national will and 
authority. It was proposed to institute such a govern- 
ment of the people of the United States, not of the states 
themselves. Such an institution would necessarily subor- 
dinate these state institutions in all national affairs, to 
national authority ; upon the principle that the whole is 
greater than any of its parts; that the authority of the 
Avhole people, is greater than the authority of a mere 
minority of them. But these state governments were to 
be continued as instruments of local or domestic admin- 
istration. As local political institutions, their author- 
ity was to continue as before, limited to local interests 
and within their respective boundaries. These laws 
could have no extra-territorial force. In respect to each 
other, each was sovereign and independent. By the 
terms of the constitution no state was to have authority 
to enter into any agreement or compact with another 
state, or with a foreign power. ^ As a fact, slavery 
existed as a local institution in the several states,^ and 
the people oould not agree to abolish it. It was therefore 
deemed necessary to insert in the constitution a provi- 
sion to secure to the owner of slaves in any of the states 

1 Art. 1, 1 10, cl. 2. s With one exception. 



874 GOVERNMENT. 

the right to pursue a,fter, and recapture his escnpiiig 
skive, in any other state within the national limits. 
Prior to the institution of the national government, the 
several states being independent and sovereign in respect 
to each other, had extended this right by means of an 
intei'-state comity. But u})on the institution of the 
general government of the nation this authority on the 
l)art of the state was to be taken away ; and, as the law 
of tlie state by which the slave was held in bondage, 
could have no extra-territorial force ; and as the state 
could enter into no compact or agreement with another 
state to establish or continue such c(miity, it was pro- 
vided in the constitution that " No person held to 
service or labor in one state, under the laws thereof, 
escaping into another, shall, in consequence of any law 
or regulation therein, be discharged from such service or 
labor, but shall be delivered up on claim of the i)arty to 
whom such service or labor may be due."^ 

% 557. Tbe sole object of this provision was to secure 
to the slaveholder the right to retain his property in the 
slave, notwithstanding his escape beyond the jurisdiction 
making him such ; and the power to enforce such legal 
right in any state where his slave might be found. In 
society there are two sources or classes of rights in 
respect to their foundation or origin : one having its 
basis in natural justice; and the other in physical force, 
or might. In all things, except slavery, the American 
people professed to have rei)udiated the doctrine that 
might could confer rights. Slavery had its basis in [)0wer 
or force. It had no shadow of natural justice in it. 
Hence, it could never exist by any implication or i)re- 
sumption of law. Said Lord Mansfield, "it is of such a 
nature that it is incapable of being introduced on any 
reason, moral or political. It it so odious that nothing 
can support it but positive law." * And even under the 
influence it obtained over the nation, by becoming the 
bond of union of one of the great political parties, 
making and unmaking presidents and administrations, 
few if any of its advocates presumed so much upon the 
ignorance or depravity of the people, as to assert that 
human slavery had its basis in natural justice; or, which 
was the same thing, that man had a natural right to 
enslave his fellow: This class of rights — if they may 
be denominated such — had their basis in force merely ; 
and their continuance always and everywhere, depended 

i Art. 4, i 2, cl. 3. 2 In the Somersett case, 20 Ho-weU's State trials, p. 1, 79. 



• INTER-STATE ADMINISTRATION. 375 

upon (lie presence of the law -wLicli crented it. There- 
fore the shiveholder, at the time of instituting the 
national governineiit, insisted upon iiitrodaciiig into the 
constitution [hefiujitive clause, that by the authority of 
the nation, the local or state power creating- slavery, 
might be extended, in respect Xo fugitive slaves, through- 
out the nation. For the shiveholder in South Carolina 
had no legal claim to the person of his slave (he moment 
such slave should pass beyond the jurisdiction of that 
state ; because the right, being one of force merely, 
ceased the moment the slave escaped and w^ent beyond 
its power. Therefore, this clause was inserted in the 
constitution to extend, by the authority of the nation, 
the right of the slaveholder to claim and recapture his 
escaping slave.^ 

% 558. The sense of the American people as to the 
nature of property in slaves, and as to the necessity of 
this special provision that it might be recognized, is 
manifested by the insertion of this clause in the con- 
stitution. At the institution of the national govern- 
ment, no one thought it necessary to insert in the consti- 
tution a provision securing to the owner of a horse or 
other personal jiroperttj, the right to take and hold it in 
another state ; because the right to property had its 
basis in natural justice; and was apimrtenant to the 
owner thereof; and it went with him; while the right 
to a slave as property was only appurtenant to the enslav- 
ing poiver; and could only continue in the presence of 
such power. The owner of a horse in South Carolina 
could migrate witli him to any state in the Union, and 
retain his property therein without any constitutional 
provision to that effect ; but the owner of a slave had 
no claim to him beyond the limits of the state, except ia 
case of fugitives ; and even in such cases his claim 
could not l)e enforced beyond the limits of national 
authority. Tlie claim, that because the slave was con- 
sidered property in the jurisdiction making him such, 
therefore he should be deemed to be property every- 
where, had no foundation in law. While slaves were 

1 By the general law of nations no nation is bound to recognize the state of 
slavery as to foreign slaves found Avithin its territorial dominions, when it is 
in opposition to its own policy and institutions in favor of tlie subjects of 
other nations where slavery is recognized. If it does, it is a matter of comity, 
and not as a matter of international right. The state of slavery is deemed to 
be a mere municipal regulation founded upon, and limited to, the range of the 
territorial laws. (Somersett's case, LofTt's Ren., 1; S. C, 11 State Trials, by 
Harg., 310; S. 0., 20 Howell's State Trials, 1, 79.) "it is manifest from these con- 
siderations, that if the constitution had not contained this clause every non- 
slaveholdiiig state in tlie union would have been at liberty to have declared free 
all runaway slaves coming within its limits. (Story's Com. on Const., g 1812, 
aad note.) 



S76 GOVERNMENT. 

always considered and treated as property by tlie 
enslaving- power, they were never considered or treated 
as sucli beyond tbe jurisdiction of such power, unless 
by comity. Bnt nnder this provision of the constitu- 
tion none but esccqnng slaves could be claimed and 
retaken after having passed the jurisdiction of the 
enslaving power. If the master voluntarily permitted 
his slave to go beyond the jurisdiction which enslaved 
him, he could not invoke the aid of this clause. It was 
because the slave could not be deemed property after ha 
had passed the limits of the authority enslaving him, that 
the master could not legally be protected in the ])osses- 
sion of slaves, in the territories of the United States. 
The law of the state had no extra-territorial force ; and 
as i)ersons were declared and held as slaves only in 
virtue of state law, as soon as they passed beyond the 
limits of the state they ceased to be slaves; not in 
virtue of any special law or statute to that effect, but in 
virtue of the limit of the authority by which they had 
been enslaved. When the master from South Carolina 
took his slaves into Kansas, and attempted to hold them 
there as such, the question arose immediately, by what 
authority does he introduce slavery into Kansas ? By 
what authority can he hold a person there in slavery ? 
The laws of South Carolina ceased in respect to hini 
and his slaves, as soon as he left the state; therefore the 
authority to hold his slave ceased at the point where 
the slaveholding jurisdiction ceased. As the law of the 
state does not extend into the territory, and as the law 
of the nation governing in the territories does not 
enslave or permit slavery, by what authority could the 
master hold the slave in the national territories? The 
complaint of the master that he was deprived of his just 
rights in the territories, because he could not hold his 
slaves there, had its answer in the fact, that he had 
invested in a species of special i)roperty, unknowu 
except in special localities ; and, therefore, if he would 
enjoy that species of property, he must confine himself 
to such localities ; and not attempt to settle in commu- 
nities, where the rights of man as man, were regarded, 
and slavery was discarded. The fault was in the char- 
acter of his investment, and not in the laws Avhich gave 
to all their freedom and just rights. 

g 559. This clause of the constitution has been the 
subject of judicial construction ;^ and, although, by the 

1 Prigg v. Commomvealth o/Fenn., 16 Peters' S. C. R,, 698; affirmed, 14 How., 13. 



INTER-STATE ADMINISTRATION. 377 

amendment of tlieconstitntion abolisliing slavery, it lias 
ceased to affect the rights or duties of American citizens, 
it may not be amiss to examine somewhat into the prin- 
ciples enunciated in such decisions, and tlie logic upon 
Avhich tliey assumed to be based. The palpable mean- 
ing of the clause, " No person held to service or labor in 
one state, under the laws thereof, escai)ing into another, 
shall, in consecpience of any law or regulalion therein, 
be discharged from such labor or service, but shall be 
delivered upon claim of the party to which such service 
or labor may be due," is, that the state into which the 
fugitive might escape, should make no law, or adopt no 
regulation by which to prevent the master or owner 
from luirsuing after, and reclaiming his escaping slave. 
The clause itself is so palpable in its meaning as to 
admit of no construction. It is not a clause conferring 
X)ower either upon the general or state government. It 
is entirely restrictive in its character — restrictive of 
state action. It is said he shall be delivered up on 
claim. But such claim can be preferred against no one 
who has not the fugitive either in his custody or within 
his control. The meaning of this provision is i)lainly 
this. Should a fugitive be brought before state author- 
ity by hahms corpus or otherwise, suing for his liberty, 
and should the master or owner establish his legal claim 
under the laws of the state from which he escaped, the 
court would not be at liberty to discharge such fugitive 
in consequence of any state law or regulation, but would 
be required to deliver him to the claimant. 

§ 5G0. The circumstances attending the introduction 
of this clause into the constitution, the object for which 
it was introduced, together with the language of the 
clause clearly demonstrate, that no cliitij urns imposed 
upon any one hy this clause, except upon the person or 
authority detaining the fugitive from the custody of the 
party to whom the kibor or service ^vas due. Even in his 
own state the master or owner could prefer no claim for 
his fugitive upon any one who had not the custody or 
control of him. He could make no demand for him, 
either upon his government or the citizens thereof, 
unless they had the slave in their custody. This clause 
was not intended to give the master greater facilities for 
retaking his escaping slave throughout the nation, than 
he possessed under his own state government. This 
clause simply extended to the master of an escaping 
slave, the right to recapture him anywhere within the 

48 



378 GOVERNMENT. 

national limits ; and, on establishing Lis claim under the 
laws of the state from which the escape was made, to 
reclaim and take him back, without let or hinderance 
fi'om state laws ou state regulations. It intended to 
leave the master to find and retake his escaping slave in 
any part of the nation, as he miglit in any part of the 
state, in tlie absence of any legal provision to aid liim. 
But it did not confer any jjower or impose any duty other 
than as above stated, upon any person or government. 

g 5G1. In the case of Prigg against the common- 
wealth of Pennsylvania,^ the supreme court of the 
United States, among other things, held that this clause 
of the constitution was restrictive of state, not federal, 
action ; that the states were precluded from all author- 
ity to legislate upon the subject ; that it was no part 
of the duty of an officer of the state government, or of 
any citizen thereof, to aid the claimant in arresting or 
securing the fugitive, or to do anythii»g in aid of that 
I)rovision. That no claim or demand could be maile 
upon any officer or citizen of the national government 
to assist in capturing and bringing before the proper 
tribunal the escaping fugitive ; that the claim could be 
made upon no one until the owner or claimant, his 
agent or attorney, had seized the fugitive and brought 
him before a competent tribunal, and had presented 
his proofs — that until then no obligation could be 
imposed upon any one — that so much of the clause as 
says, the fugitive shall be delivered up on claim, when 
construed Avith other parts of the same clause, can refer 
only to those who are detaining him by virtue of some 
state law or regulation, after the validity of the master's 
claim had been established; that if there should be any 
national law or national regulation, or any defect in the 
master's title under any law or regulation of the state 
from which he escaped, by which he would there be 
discharged, there would be no obligation upon any one 
to deliver him up, 

g 562. The supreme court, in the Prigg case, took the 
broad ground that a state could pass no law, or make 
no regulation whatever, touching the subject-matter of 
this clause, for the purpose of carrying the same into 
effect or otherwise; — that any regulation, by a state 
even, for the purpose of trying the question of fact, 
whether the alleged fugitive was in reality such, or 
whether he owed labor or service, would be uucou- 

1 18 Pet. Rep., 60S; affirmed, 14 How., 13. 



INTER-STATE ADMINISTRATION. 379 

stitntioiinl ; — tliat any detention for sncli trial, wonld 
l)()sti)()ne the ))ossession of tlie master, and deprive liini 
of that inunediate command of his services to which ho 
mi<j;ht be entitled ; — and that it wonld operate as a dis- 
cliarge "jrro tanto^^ from the labor and service dne; — 
that the qnestion of discharge could never be ''how 
much'" he is discharged from, but whether he is dis- 
charged '\from anij''^ labor or service by the necessary 
operation of a law or regulation of a state. The prin- 
ci[)le involved in the ojnnion of the court as above 
stated, if observed, would deny to a state all authority 
to protect a citizen thereof from arrest and e^^tra- 
dition, i)rovided the arrest was made under pretense 
that he was a fugitive from labor or service. He might 
be taken from his home at any time, without legal pro- 
cess, and be transported to a remote part of th? state to 
be brought before a district or circuit judge ; there to be 
tried upon a question involving his personal liberty for 
life ; without notice to prepare for trial ; without pro- 
cess to obtain witnesses, without counsel or the means 
of obtaining any.^ 

S 503. At the time the constitution was ordained and 
established, and the general government was instituted, it 
does not appear that the people contemplated the jicfpii- 
sition of other territory than what they then possessed. 
The provision of the constitution that congress might 
admit new states into the contem[)lated union, referred 
as well to states then existing which might not at once 
unite in ratifying the constitution, as to those which 
might be formed in the then existing territories. In the 
progress of the revolution, it was perceived that from 

1 It is worthy of notice, that in the decision of tliis case, each of the judges 
gave opinions; and while they were intent upon holding tliat congress liad tlie 
exclusive rigUt of legislation upon this subject, a majority of the court could, 
agree upon no ground for so holding. Indeed, scarcely any two of tlie judges, 
were able to agree as to reasons for holding such an opinion; so that the 
decision seems to have been given without any other satisfactory reason than 
that the court desired to have it so. Cases thus decided, while they become 
precedents, are not satisfactory to the profession; for it cannot be disguised, 
that they are based more upon the feelings of the men, than the convictions 
and judgment of the court; and often betray more of the politician than of 
the judge. Fortunately for all, this clause has become obsolete or nearly so, 
by the abolition of slavery throughout the United States. 

The position taken by the court in this case virtually made the liberties of 
the citizens of the free states to depend upon the slave code of South Carolin.a, 
It was only necessary for a stranger to appear in our midst, and to lay claim 
to a human being as his property, or slave — no matter who that being might 
be. It might be the wife or child of a well-known citizen. The power of the 
state to in vestigate such a case was gone ; because, in the language of the court, 
the constitution had vested the power to investigate such ci-Aim^, exclusiuely, 
in such tribunals as congress should appoint. A debauchee lusts for a fair 
v/oman ; and under pretense that she is a fugitive, owing him service, etc., he 
seizes her, without process, and carries her off, pretending to be in search of 
a proper tribunal to try the question; and while this is going on, all legal 
powev and authority in the state to arrest the outrage and try the question of 
owing service are suspended, because the constitution has committed that 
subject to another jurisdiction. 



380 GOVERNMENT. 

the extent of territory of several of the states, it might 
become ex|)edient to divide the same into two or more 
states ; besides it became an interesting question whether 
the right to this vacant territory pertaining to the crown 
at the time of the revolution, belonged to the several 
states within whose chartered limits it was situated; or 
whether it ought not belong to the nation in its federa- 
tive character, by whose expense of blood and treasure 
it had been acquired. This was a subject of protracted 
and ardent controversy ; but^ at length some of the states 
yielded to the solicitations of congress, and most of the 
uni>atented territory was ceded to the nation.^ To 
induce the states to make liberal cessions, congress 
declared that the ceded territory should be disposed of 
for the common beuellt of the union, and should be 
formed into re[)ul)lican states, with the same rights of 
sovereignty, freedom and inde])endence, as the other 
states; that they should be of a suitable extent of 
territory not less than one hundred and not more 
than' one hundred and hfty miles square and that 
the reasonable expenses incurred by the state, since 
the commencement of the revolutionary war, in 
subduing the British posts, or in maintaining or acquir- 
ing the territory should be reimbursed.^ It was with 
refereiice principally to this territory that this clause of 
the constitution was adopted. The general precaution, 
that no new state should be formed, by dividing or taking 
parts of several existing states for that purpose, without 
the concurrence of congress, and of the legislature of 
the states concerned, was highly proper. So likewise 
was the provision that no new state should be formed by 
the junction of two or more states or parts of states. 

§'5G4. Although the constitution made no express pro- 
vision for the acquisition of new territory by the nation, it 
was soon demonstrated that such powers were essential to 
any government intrusted with the execution of national 
authority. In 1801, when France was about to acquire, 
and come into possession of Florida aiid the Louisiana ter- 
ritory, including the mouth of the Mississippi river, the 
nation determined that that outlet to the products of a 
large portion of the territory of the United States, could 
not be intrusted in the hands of any foreign power ; and 
by the general consent of the nation, the Louisiana terri- 

1 1 Tuck. Bla. Com., app. pp. 2S3-2S6; 2 Pitkin's History, cli. 11 p. 33-36; Story's 
Com. on Const., §? 227, 228. ^ , ^^ 

2 1 Secret .1 ournals of Congress, Sept. 6, 17S0, pp . 440-441 ; 6 Journals of Congress, 
Oct. 10, p. 213; 2 Pitkin's Hist., cli. 11, pp. 31-36; Story on Const., 2 1316, and note. 



INTER-STATE ADMINISTRATION". 381 

toiy was purchased. ludeed, so vital to the security and 
prosperity of the nation was the possession of the month 
of the Mississippi, that Mr. Jeflerson instructed Mr. 
Livin'^ston, our minister at Paris, to represent in sub- 
stance to the French nation, that any attempt on its 
part to occupy New Orleans as a«2:ainst the Ujiited 
States woukl be deemed a just cause of war. The rights 
of sovereignty necessarily incident to nationality include 
the right to acquire territory whenever the security and 
welfare of the nation demand it.^ The treaty-makiug 
power necessarily includes all authority essential to such 
acquisition. Since that time, the nation has acquired 
territory from Mexico, including a portion of Texas, 
New Mexico and California. And a treaty has been in 
progress between the United States and Russia for the 
acquisition by the United States,'of the Russian posses- 
sions in America. 

§ 5G5. Shortly after the inauguration of the rebellion 
in 18G1, the legislature of Virginia passed an ordinance 
of secession, and assumed to take the State of Virginia 
out of the union. The people in the northern and west- 
ern part of the state were loyal to the union, and refused 
to be bound by the treasonable action of those who had 
undertaken to force them into rebellion. Measures were 
soon after inaugurated to bring about a political divi- 
sion of the state, which resulted in the establishment of 
a new state called " West Virginia," consisting of forty- 
eight counties. This state was admitted into the union 
in'pnrsuance of an act of congress passed December 31, 
18G2.'- 

g 5G6. As the general government was instituted for 
the purpose of exercising national authority over all 
matters pertaining to national security and welfare, it 
Avas necessarily charged with the regulation and govern- 
ment of the territories belonging to the nation, and 
therefore the constitution committed to congress the 
power to dispose of, and make all needful rules and 
regulations respecting the territory and other property 
belonging to the United States.' When for any purpose 
or by any means, the nation acquires territory, the title 
to tlie same vests in the nation as a corporate society. 
It does not belong to individuals as members of the 
national society, and they can have no property in, or 
authority over, such territory except through theauthor- 

' -A-nte, ? , „ „ ,„ 

s 3d Session of the 37th Congress, ch. C, p. 633. 
3 Art. 4, 1 3, cl. 2, Canst. CJ. S. 



882 GOVERNMENT. 

ity of the nation as expressed tbrongli the law-niakin<j 
power thereof. Dnrhig- the political struggles between 
the anti-slavery and pro-slavery parties in the United 
States, questions of national authority over the terri- 
tories of the United States were raised and discussed. 
The slaveholder insisted upon his right to take his slaves 
with liiui into these territories, and to hold them there 
as slaves; thus establishing slavery in the territories, 
and to accomi)lish this end, divers theories respecting 
the rights of the inhabitants in, and the authority of 
the government over, these territories were instituted 
and (liscussed. There was one theory denominated in 
political parlance, "s(piatter sovereignty," which cou- 
tetided that those who inhabited a territory had the sole 
authority of determining the character of the domestic 
or local institutions to be introduced therein. If they 
were in favor of slavery in the territory, then slavery 
might be introduced, against the wishes or consent of 
the peo[)le of the United States. This class of political 
philosophers had their origin in a theory introduced in 
184G, by General Cass, to wit, that congress had only 
a property jurisdiction over the territories of the Uiiited 
States, aiid'had no authority over the local and domes- 
tic concerns of the inhabitants thereof.^ This theory 
was introduced as a means of defense against what was 
denominated the " Wilmot Froviso,'' which proposed 
that congress should, by law, make it impossible to 
create any future slave states out of free territory. 
These theories were discussed by the leading political 
parties at times with great earnestness, but were never 
accepted or acted npon by the government or people of 
the United States. They had their influence in the 
political canvass, but were never recognized in the halls 
of legislation or upon the bench. 

g 567. Those who denied to congress the right to leg- 
islate for the territories of the United States, were 
obliged to assert the right of the nation to acquire terri- 
tory, not in virtue of any constitutional provision to that 
effect, but in virtue of national sovereignty. This involved 
the absolute fallacy of their theory. The nation, in vir- 
tue of its sovereignty, acquired territory from like sov- 
ereign nations. The question then arose, did the nation 
acquire only a ^jroj^eri?/ jurisdiction over such territory, 
leaving the sovereignty in France, Mexico, or Spain, or 
did she acquire the sovereignty likewise ? It could not 

1 See his letter to A. O. P. Nicholson, of Tennessee. 



INTER-STATE ADMINISTRATION. 883 

be denied that in acquirin<^ the territory of Florida, 
Loiii.siana, New Mexico and California, tLe sovereignty 
Lad been acquired, and being- acquired, it had been ves- 
ted in the people as a nation, there to remain until by 
the legislative will of the nation, it should be transferred 
to another like sovereign. This proposition was easy 
of comprehension. The people of the nation, in virtue of 
their inherent sovereignty, acquired the property in, 
and sovereignty over, the territories of the United States. 
AVhen ac(iuired by purchase, they were paid for out of 
the common treasury ; when by conquest, they were 
acquired by the common blood of the nation ; and when 
the title was transferred, it was transferred to the nation 
at large. Therefore every citizen of the United States 
had a right to participate in the regulation and govern- 
ment of the same through the national legislature. 

g 508. The fourth section of the fourth article of the 
constitution provides that "the United States shall guar- 
anty to every state in this Union, a republican form of 
government; and shall protect each of them against 
invasion ; and on application of the legislature or of 
the executive — when the legislature cannot be convened 
— against domestic violence." By the terni"f//6' United 
States,'' as here used, is understood the people of the 
United States, acting through the agency of the general 
government; that is, those ■who ordained and estab- 
lished the constitution, and instituted the general gov- 
ernment as a means of administering their authority. 
This provision of the constitution is in itself the author- 
itative guaranty, to be carried into execution through 
the general government. The parties to this guaranty 
are the people of the nation on the one hand, and the 
people of the state on the other, each with all, and all 
with each, that the local or state government under 
which they live, shall be in form republican. The lan- 
guage of this clause is peculiar. It is not that the na- 
tion shall guaranty to the states that every associate 
state shall be republican in form; but it shall guar- 
anty to every state, a republican form of govern- 
ment; the guaranty is to each state, that is, to the 
people of each state that the local or state government 
shall be republican in form. It is the guaranty of the 
thirty millions of the nation, to the one hundred and 
twelve thousand of the inhabitants of Delaware, that 
the local or state government of Delaware shall be 
rex)ublican. 



884 GOVERNMENT. 

g 569. The states as political corporations were not 
parlies to the constitution ; but tbe citizens of tlie states 
ill their character as national citizens were parties to it. 
The states as i^olitical corporations stood in need of no 
such guaranty. The people of the state had authority 
to determine the form of their government imov to the 
institution of the general government; and if they 
desired one republican in form, they could have it with- 
out any guaranty from the nation. It was not the 
design of this provision to secure the people of a state 
against their own future volitions, should they, on the 
faihire of the system they were then adopting, desire to 
change the form of their local government. It was not 
to the state as a corporation or an association of people 
that the guaranty was made ; but to the individual 
crushed and overwhelmed by an insolent and oppressive 
majority ; it was to him as a citizen of the Uuited States 
whether in the majority or the minority, that the guar- 
anty was given to secure him not only from individual but 
governmental oppression. The ends sought to be accom- 
l^lished b}^ the institution of the general and state gov- 
ernments are better secured by construing this guar- 
anty as extending to all the people of the several states, 
and thus securing to each the benejfits of a republican 
form of government, than by any other construction. 
It thus pledges the faith and power of the nation to 
every citizen, that the local government nnder which 
he lives shall be republican, and that he shall be enti- 
tled to sustain to it the relation of a free citizen. 

g 570. It has been urged that the term " repuUican^^ 
is vague and indefinite ; that the worst kinds of despot- 
ism have flourished under governments " republican in 
form;'' and the republics of Greece, and Home, and 
Italy have been cited. It is admitted, that looking at 
simple precedents without an investigation of the princi- 
ples involved in a republican government, the friends of 
freedom have little to hope from a government republican 
merely in its form. But an investigation of the princi- 
j)les which give name to a republican government, and 
an observation of the manner in which, and the reasons 
for which, that form of government is prescribed by and 
guaranteed in, the constitution of the United States, 
make it a bulwark of American liberty, which cannot 
be evaded or overthrown. As a corporation a state 
may be republican in form, while but a moiety of 
the people are represented in the government; — it 



INTER-STATE ADMINISTRATION". 385 

may be republican in form, while its proportions are 
cramped and distorted by limitations and partialities. 
The idea of a republic necessarily places the sov'erei<^nty 
in the people. It supposes that those who administer 
the public authority do so by the authority of the 
people, that is by the governing portion of them. Gov- 
ernments have been called republics which have been 
under the direction of a wealthy or aristocratic class, in 
which the masses of the people had no voice. Never- 
theless they were denominated republican, as distin- 
guished from monarchies. The principles upon which 
such governments were administered, taken in respect 
to the administration thereof, were republican, and they 
Avere denominated republics ; and a guaranty made to 
the governing class that the government should be to 
them republican in form would have been fulfilled. But 
had the guaranty been made to each individual subject 
of that government, that for the protection of his rights 
the government should be to him republican, it would 
not have been realized. When, however, it is remem- 
bered that the guaranty under consideration was made 
by all the people of the United States with each and 
every citizen thereof, that the local or state govern- 
ment under which he should live, should be to him 
republican in form, it became the highest guaranty of 
civil protection which could be given to a citizen. 

g 571. The Federalist sometimes speaks of the Ameri- 
can Union as though it was a confederacy ; and at other 
times as though it was a government of the people. In 
commenting upon this clause of the constitution, it 
treats the union as a confederacy. It says, "in a con- 
federacy fouixled on republican principles, and com- 
posed of republican members, the superintending gov- 
ernment ought clearly to possess authority to defend 
the system against aristocratic or monarchical innova- 
tions. The more intimate the nature of such a union 
may be, the greater interest have the members in the 
jjolitical institutions of each other; and the greater 
right to insist, that the form of government under which 
the compact was entered into, should be substantially 
maintained. But a right implies a remedy ; and where 
else could the remedy be deposited, than where it is 
deposited by the constitution. Governments of dis- 
similar principles and forms have been found less 
adapted to a federal coalition of any sort, than those 
of a kindred nature. ' As the confederate republic of 

49 



386 GOVERNMENT. 

Germany consists of free cities and petty states, subject 
to different princes, experience shows us that it is more 
imperfect than that of Holland and Switzerland. 
Greece was undone as soon as the kin^ of Macedon 
obtained a seat among the Amphictyons.' " ^ 

§ 572 But the plain statement of the case seems to be 
this: — The people of the United States in the institution 
of the general and state governments were i)roviding 
for the administration of their authority in such a man- 
ner, as to secure to themselves and their posterity the 
blessings of civil liberty. It was a part of their system 
to commit the management of all local and domestic 
interests to local governments, which, in the exercise of 
their authority within the sphere of their administration, 
were to be independent of the general government, and 
of the people of the other states or portions of the 
nation. These local or state institutions already existed 
over most of the national domain ; and were to be insti- 
tuted whenever and wherever future occasion might 
require. Every national citizen was likewise a state 
citizen ; subject to the administration of these local gov- 
ernments, in all that pertained to his local and domestic 
interests. As a state citizen, no one had any authority 
to interfere with, or direct, the administration of govern- 
mental authority, in other states ; and yet his safety and 
welfare as a national citizen, would be greatly affected 
by the political character of the other local governments. 
It was therefore a matter of necessary precaution that 
the ijeople of the nation should at all times retain the 
political supervision of the character of these local or 
state institutions, and see to it, that, in character, they 
should be in harmony with the American theory and 
principle of government. 

% 573. These states, in territory, are but portions of the 
national domain ; in inhabitants, but families of national 
citizens ; in political individuality, but corporate instru- 
ments of national administration, instituted for local and 
special purposes. It was therefore the duty of the nation, 
to protect them against foreign invasion from without, 
and domestic violence from within, to enable them to 
discharge the duties imposed upon them, and to secure 
to the people the blessings of civil liberty. The consti- 
tution therefore provides, that the nation shall protect 
each state against invasion and domestic violence.^ 

1 Montesquieu, B. 9, ch. 1, 2; Federalist, No. 21 ; Story's Com. on Const., § 1815. 
3 Art. 4, 2 4, Const. U. S. , 



constitutio:n'al amendments. S87 

CHAPTER XIX. 

OF A]VIE^^):^rENTS to the coxstitutiox. 

§ 574. The constitution of the United States was 
ordained and established for the purpose of instituting a 
goverment authorized to speak and act for the nation 
Tlie experience of thirteen years under the confederacy, 
had demonstrated the fact, that a nation could not exist 
and maintain its independence, without a government 
iutrnsted with the exercise of supreme authority over 
every subject essential to a true nationality. The 
people of the United States ordained and established the 
constitution to the end that such a government might be 
instituted. In the institution of such government, they 
took especial care to act in virtue of their authority as 
members of the national society ; as people of the United 
— not of the separate States. When the constitution 
had been framed by delegates from the several states, 
and made ready to be submitted, it was especialy pro- 
vided, that it should be submitted to the people of the 
states, and not to the states as political corporations, — • 
for their ratification. That the legislatures of the seve- 
ral states should provide by law for the calling of 
primary conventions of the people to whom the proposed 
constitution should be submitted. The object of these 
requirements was to institute a national government of 
the people ; and not a confederated government of the 
political states. It was to base the government upon 
the inherent sovereignity of the American nation, and 
make it supreme over all local or state authority in its 
administration. In such action, they occupied a plane 
above constitutions, and spake with the authority that 
ordains and estaNishes independent of constitutions ; an 
authority which pertains to society in its sovereign rela- 
tions to each and every member thereof; acknowledging 
no superior save God and his laws, natural and Divine. 
Therefore they said, " This constitution and the laws of 
United States made in pursuance thereof, etc., shall he 
it/je supreme law of the land; and the judges in every 
stiite shall be bound thereby, anything in the constitu- 
tion or laws of sluj state to the contrary notwithstand- 
ing." ^ 

1 Art. 6, cl. 2, Const. U. S. 



388 GOVERNMENT. 

g 575. In providing for amendments to tMs consti- 
tution, the people retained the authority to make such 
changes as experience should demonstrate to be neces- 
sary for the safety and welfare of the nation. Article 
five provides that " the congress, whenever two-thirds 
of both houses shall deem it necessary, shall propose 
amendments to this constitution ; or on the application 
of the legislatures of two-thirds of the several states, 
shall call a convention for proposing amendments, 
which, in either case, shall be valid to all intents and 
purposes, as a part or this constitution when ratified by 
the legislatures of three-fourths of the several states, or 
by conventions in three-fourths thereof, as the one or 
the other mode of ratification may be proposed by the 
congress." 

S 576. This provision points out two modes of amend- 
ment of the constitution, one at the instance of the 
general government, through the instrumentality of 
congress ; the other at the instance of the states. Con- 
gress, whenever two-thirds of each house concur in the 
expediency of an amendment may propose the same ; 
and when it is ratified by the legislatures of three-fourths 
of the several states, or by conventions, as congress 
shall direct, it becomes a part of the constitution. Or 
the legislatures in two-thirds of the several states may 
apply for a convention for proposing amendments, 
which congress is obliged to call on such application, 
and the amendments ijroposed by such convention, to 
become a part of the constitution, must be ratified in the 
same manner as when proposed by congress. 

§ 577. Whether the proposed amendments to the 
constitution shall be ratified or rejected by the action 
of the state legislatures, or by the action of conven- 
tions of the people in the several states, depends upon 
the discretion of congress. The amendment, when 
made, becomes, to all intents and purposes, a part of 
the constitution ; and, therefore, of the supreme law of 
the land. The authority involved in making these 
amendments is superior to the constitution itself; that 
is, it must be an authority which can add new pro- 
visions, or remove existing ones, at pleasure. For this 
reason congress, as the national legislature, determines 
whether the proposed amendments shall be submitted 
for ratification, to the state legislatures, or to conven- 
tions of the people, so that the ratification or rejection 
of any proposed amendment, will be . by national, and 



CONSTITUTIONAL AMENDMENTS. 389 

not state authority. By this provision of the consti- 
tution, an amendment may be made conferring upon 
the general government full jurisdiction over any 
subject, at the expense of state administrative author- 
ity, even against the consent of one-fourth of the 
states ; that is, a state is liable to be deprived of any 
portion of its jurisdiction without its consent This of 
itself, demonstrates the superior authority of the nation 
over that of the states. No political corporation can 
be deemed sovereign when its will is subject to a higher 
legal authority. Sovereignty, as an attribute of civil 
government, is the supreme authority and power by 
which a state is governed, and implies the right of com- 
manding in the last resort. Therefore, there can be no 
absolute sovereignty in a state, where the authority of 
its constitution and laws are liable to be overruled by a 
higher authority. 

,§ 578. The mode pointed out by the constitution in 
which amendments may be made, evinces great wisdom 
and prudence on the part of those who framed and adopted 
it. Being a new experiment in government, it could not 
be presumed to be sufhciently perfect, not to require 
amendments to adapt it to the needs of the expanding 
nation ; nevertheless it should guard against impulse or 
haste in changing its principles to meet any supposed 
need, or to supply any apparent defect. The require- 
ment, therefore, that before any amendment should be 
made, it should be proposed by two-thirds of each house 
of congress, or by a convention called on the applica- 
tion of the legislatures of two-thirds of the states ; and 
that the amendments thus proposed before they should 
become valid as parts of the constitution, should be rati- 
fied by three-fourths of the votes of the states, etc., seems 
to be eminently wise and safe. The necessity for an 
amendment must become palpable before it can be pro- 
posed ; and it must be essential to the security or welfare 
of the nation, or three-fourths of the states through their 
legislatures or conventions would hardly be inclined to 
adopt it. The time required, and the deliberation which 
would be had, in proposing and ratifying any amend- 
ment, would be suflScient to insure wise and prudent 
action on the part of the best minds of the nation. 

§ 579. The peopld of the United States were exceed- 
ing jealous of power in the hands of those charged with 
the administration of the general government. They 
seemed continually to lose sight of the fact, that the 



390 GOVERNMENT. 

national government was as eminently theirs, and as 
immediately responsible to them, as was the govern- 
ment of the states; — that it was to them, as national 
citizens, what the state government was to them, as 
state citizens — that both were their own institutions, 
created for their own protection and welfare; — that 
the state and national citizen was one and the same 
individual, having one and the same interests to be pro- 
tected and promoted — that the character and interests 
of an individual as a national citizen, could never 
prompt him to injure and oppress himself as a state 
citizen; — that therefor, there never could be a disposi- 
tion on the part of the nation to trench upon the rights 
and liberties of the citizens of the state. In short, tbat 
the body, consisting of all the members, could never iind 
an interest or an inclination, to make war upon its indi- 
mdiial members. So the national citizen could never 
be placed in a situation where either interest or inclina- 
tion would lead him to injure himself as a state citizen. 
The constitution of government, while it made the legis- 
lative office permanent, provided for returning one 
branch thereof to the people every two years ; so that 
the individual members of the legislature could not 
separate themselves from the people, and legislate for 
j)ermanent advantage to themselves. There could be no 
inducement to usurp authority, or to accumulate power 
in the government as against the people ; for those who 
did so would soon be returned to the people to suffer the 
oppression of their own begetting. The members of the 
general government not being permanent, and being 
obliged to live as citizens under the la'u s of their own 
enacting, would not be inclined to injure themselves by 
Avicked, weak or imprudent legislation. They had lived, 
hitherto, under a national government monarchical in 
theory and practice. That government, in its authority 
and interests, had been separated from the masses, and 
was not responsible to them. The independence they 
had proclaimed, and maintained, was achieved to vindi- 
cate the rights of the citizen against the oppression of 
such government. It was, therefore, natural for them 
to feel and act as they did, until such early impressions 
of the natural separation of the interests of the govern- 
ment and people were removed. Under the influence 
of these feelings, they demanded that the constitution 
should contain guarantees in favor of the people as 
against the government, iu the nature of bills of rights, 



CONSTITUTIONAL AMENDMENTS. 391 

such as had been demanded of King John, Charles the 
First, and other princes. Most of the amendments to 
the constitution which were made soon after, were of 
this character, 

g 580. Bills of rights, in theb origin, are stipulations 
between the prince and bis subjects ; that is between, 
the government and people, for the limitation of prerog- 
ative authority in the administration of the government. 
These stipulations are proper, and not unfrequently 
necessary, in monarchical countries where the govern- 
ment in origin, authority, and interest, is separated from 
the peoi)]e. But in democratic countries, where the 
people themselves are not only the source of govern- 
mental authority, but the administrators of it, there is 
less occasion to guard their liberties by limitations and 
restrictions in the nature of such bills. There are possi- 
bilities of temporary abuses of governmental powers 
which would endanger, for the moment, the rights and 
liberties of the citizen. To guard against such tempo- 
rary dangers, it is proper to insert; in the fundamental 
law, limitations and restrictions of such a character as 
will be likely to prevent their occurrence. Thus, the 
first amendment to the constitution provides that con- 
gress shall make no law res[)ecting an establishment of 
religion ; or prohibiting the free exercise thereof. In 
that respect government is to leave man to his own 
conscience, and to take upon himself the responsi- 
bilities of being true to the demands of his religious 
nature. He must be left to adapt his creed to his con- 
victions ; and both, to such light and understanding as 
a free inquiry into his own nature, needs, duty and rela- 
tion to God and man will give him. History and obser- 
vation have taught, that nothing is more likely to occur 
under any form of government, than an effort to impose 
upon others, the religious creeds and observances of 
those who, in influence or power, lead society. There- 
fore to guard against such a possible attempt this pro- 
vision was inserted in the fundamental law. 

,§ 581. Says Judge Story :^ " How far any govern- 
ment has a right to interfere in matters touching reli- 
gion has been a subject much discussed by writers upon 
public and political law. The right and the duty of the 
government to interfere in matters of religion have been 
maintained by many distinguished authors, as well 
those who were the warmest advocates of free govern- 

1 Com. on Const. 2 1871. 



392 GOVERNMENT. 

meuts, as tliose who were attached to governments of a 
more arbitrary character. Indeed the right of society or 
government to interfere in matters of religion will hardly 
be contested by any persons, who believe that piety, 
religion and morality are intimately connected with the 
well being of the state, and indispensable to the admin- 
istration of civil justice. The promulgation of the great 
doctrines of religion, the benign attributes and provi- 
dence of one Almighty God, the responsiblity to Him for 
all our actions, founded upon moral freedom and account- 
ability ; a future state of rewards and punishments ; the 
cultivation of all the moral, social and benevolent 
virtues, can never be a matter of indifference in any well 
ordered community.^ It is indeed difficult to conceive 
how any civilized society can well exist without them. 
It is impossible for those who believe in the truths of 
Christianity as a divine revelation, to doubt that it is 
the especial duty of government to foster and encour- 
age it among all the citizens and subjects. This is a 
jjoint wholly distinct from that right of private judg- 
ment in matters of religion, and of the freedom of pub- 
lic worship according to the dictates of one's conscience." 
§582. "The real diflficulty lies in ascertaining the 
limits to which government may rightfully go in foster- 
ing and encouraging religion. Three cases may easily 
be supposed. One where government afibrds aid to a 
particular religion, leaving all persons free to adopt any 
other. Another where it creates an ecclesiastical estab- 
lishment for the propagation of the doctrines of a 
particular sect of that religion, leaving a like freedom 
to all others. A third where it creates such an estab- 
lishment, and excludes all persons not belonging to it, 
either wholly or in part, from any participation in the 
public honors, trusts, emoluments, privileges and immu- 
nities of the state. For instance, a government may 
simply declare that the christian religion shall be the 
religion of the state ; and shall be aided and encouraged 
in all the varieties of sects belonging to it. Or it may 
declare that the Catholic or the Protestant religion shad 
be the religion of the state, leaving every man to the 
free enjoyment of his own religious opinions. Or it 
may establish the doctrines of a particular sect, as of 
Episcopalians, as the religion of the state, with a like 
freedom ; or it may establish the doctrines of a par- 
ticular sect, as exclusively the religion of the state, 

1 Burlamaqui, pt. 3, p. 171. 



CONSTITUTIONAL AMENDMENTS. 393 

tolerating otliers to a limited extent, or excluding all 
not belonging to it from all iJiiblic honors, trusts, 
emoluments, privileges and immunities." 

g 583. There is no real difficulty in determining the 
true limit of governmental action in respect to morality, 
religion or any other state of the individual by which 
he is to be made a better member of society. There is 
a wide distinction between what the public authority 
should encourage, and what it should ordain and estab- 
lish; and there is likewise a wide distinction between 
religion, as a state of the heart or affections, and 
theology, or the i^hilosophy or science by which that 
religious condition is to be induced in the individual. 
Eeligion has respect to what a man is; theology to what 
a man believes and lyractices. True religion consists in 
that spiritual condition or state of the individual by 
means of which he becomes united to, and at one with, 
God. True theology consists in that faith and practice 
by which that true religious condition is to be attained. 
Government can appropriately encourage that faith and 
I)ractice, which appears to it, to lead to that true 
religious condition or state, and in this way, to encour- 
age religion. It can create and endow schools and 
seminaries of learning with such a view. But it cannot, 
constitutionally or appropriately, determine what par- 
ticular faith and practice shall be adopted and followed 
by a citizen or class of citizens, nor can it use the public 
authority to establish any particular mode or form of 
faith. 

g 584. It is the province of government to protect 
society from such conduct on the part of citizens, as 
tends directly to destroy public morality and virtue ; or 
to inflict evils upon individuals and society. Practices 
may be encouraged, or even required, in the name of 
religion, which it would be the duty of government not 
only not to encourage, but absolutely to prohibit and 
punish. There is, and can be no limit to the follies and 
absurdities practiced and inculcated in the name of reli- 
gion. A parent may feel called upon to sacrifice his 
child ; or a mother, her babe. A wife or widow, to burn 
upon the funeral pile. One may profess to believe it 
to be his duty to live in a state of sexual permiscuity, 
and to beget as many children as he has the physical 
ability. These and a thousand such absurd and hurtful 
notions may be promulgated and practiced as a rehgious 
privilege, duty and obligation. No one will presume to 

50 



394 GOVERNMENT. 

question either tbe authority or the duty of the govern- 
ment, to protect society against such i)eriiicions practices, 
even though it should interfere with the religion of the 
Hindoo or the Mormon. The true scope of govern- 
mental policy and authority in respect to religion would 
seem to be, to encourage that faith and i)ractice which 
tends directly to in-odiice in theindividnal a high sense 
of respousil)ility to the All-true, All-puke, a"ll-just, 
WISE and good, and to prohibit those practices whieli are 
in their nature criminal or whose direct and inevitable 
tendencies are to produce criminal acts. When a person 
does an act which is prohibited by law as criminal or 
hurtful to individuals or society, he is responsible for 
the injury, without any inquiry into the moral, political 
or religious philosophy b}* which he attempts to excuse 
himself. He is punished for the crime committed againsb 
individuals or society, not for an error in his religious 
faith or practice. Tlie constitution intends to protect 
all in the practice and enjoymentof their religious fjxith, 
so far as it does not beget or inculcate criminal or hurtful 
civil practices. The remaining part of this clause 
Ijrovides for the freedom of speech and of the press, 
independent of the exercise of governmental authority. 
% 585. The second amendment of the constitution 
jjrovides that the right of the people to keep and bear 
arras shall not be infringed, because a well-regulated 
militia is necessary to the security of a free state. 
The militia are the citizen soldiers, as distinguished 
from those who are trained to arms as a j)rofession, and 
who constitute the elements of a standing army. To be 
an efficient militiaman the right to keep and bear arms 
is essential. This jjrovision had its source in that 
jealousy of power in the hands of the general govern- 
ment, so manifest in the people, at the time the consti- 
tution was framed and adopted. This right in the 
people to keep and bear arms, although secured by this 
])ro vision of the constitution, is held in subjection to 
the i)ublic safety and welfare. Whenever for any 
cause, the public safety shall require the substitution of 
martial for civil administration, then the maxim, sains 
respuNicoi suprema lex, applies ; and this constitutional 
right may be temporarily suspended. But while civil 
authority bears sway, this provision of the constitution 
is the supreme law upon that subject. Of the same 
character is the third amendment. No soldier shall, in 
time of peace, be quartered in any house, without the 



CONSTITUTIONAL AMENDMENTS. 395 

consent of the owner, nor in time of war, but in the 
manner prescribed by law. In time of peace, when the 
civil administration of authority is competent to protect 
society, every man's house is his castle. The king even 
cannot pass his threshold without express or implied 
l)ermissi()n. But in time of war, when civil authority 
is supplanted by martial power, because force must 
answer to force, then the particular security of the indi- 
vidual subject must yield to the safety and welfare of 
the state. Then the public authority must clothe itself 
with all necessary power over the persons and property 
of the subject, and Avield it for the public good. 

^ 58G. The fourth amendment to the constitution is 
but a continued enumeration of those limitations and 
restrictions of governmental authority, deemed essential 
to the security of the citizen. It provides that the right 
of the people to be secure in their person, houses, papers 
and effects, against unreasonable searches and seizures 
shall not be violated : and that no warrants shall issue 
but upon probable cause supported by oath or afiirma- 
tiou, and particularly describing thei^lace to be searched 
and the person or thing to be seized. Such substan- 
tially was the rule of the common law.^ But after the 
restoration in England, a practice had obtained in the 
secretary's office of issuing general warrants to arrest 
persons of certain classes or practices, without naming 
any ; authorizing the officers to apprehend all suspected 
persons. Under such general warrant great abuses were 
practiced. The question of the legality of these war- 
rants coming before the king's bench, they were held 
to be void for uncertainty.^ But this provision, like 
those going before, is only a limitation upon the civil 
authority of the general government. Whenever martial 
law becomes necessary, these restrictions and limita- 
tions cannot be appealed to. 

g 587. Xo person shall be held to answer for a capital 
or otherwise infamous crime, unless on a presentment or 
indictment of a grand jury, except in cases arising in the 
land or naval forces, or in the militia when in actual 
service, in time of war or public danger. Nor shall any 
person be subject for the same offense to be twice put in 
jeopardy of life or limb ; nor shall be compelled in any 
criminal case, to be a witness against himself, nor be 
deprived of life, liberty, or property, without due process 

1 3 rranch, 447; 1 Leading Crim. cases, p. 161 ; 9 Georgia, 73. 

2 3 Burr, 1743 ; 4 Bl. Com., 291, note to same; 3 Cranch, 447. 



396 GOVERNMENT. 

of law ; nor shall private property be taken for pnblic use 
without jnst compensation/ and in all criminal prosecu- 
tions the accused shall eujoy the right to a speedy and 
public trial, by an impartial jury of the state and district 
wherein the crime shall have been committed, which 
district shall have been previously ascertained by law ; 
and to be informed of the nature and cause of the accu- 
sation > to be confronted with the witnesses against him ; 
to have compulsory process for obtaining witnesses in 
his favor, and to have the assistance ot" counsel for 
his defense. The object of these amendments is to 
secure to every citizen or inhabitant of the nation, who 
may chance to be accused of a crime against the peace 
and dignity thereof, an honest and fair opportunity to 
vindicate himself before the tribunals of his country. 
First, he shall not be required to make any answer to a 
criminal accusation, until that has been formally reduced 
to writing and attested by responsible official parties, hav- 
ing legal authority to investigate the facts and frame the 
accusation. Second, having once been legally tried for 
an offense, he shall not be tried again, for the same 
offense, and thus be twice put in jeopardy therefor. 
Third, he shall not be required to be a witness against 
himself in any criminal trial. Fourth, he shall be 
entitled to a speedy and pnblic trial, before a jury of the 
district or state in which the crime is alleged to 
have been committed, which district must have been 
ascertained and determined by law before the commis- 
sion of such crime. He may demand to be informed of 
the nature and cause of the accusation, and to be con- 
fronted on trial with the witnesses against him ; and to 
demand and have the compulsory process of the court 
to obtain his witnesses, and the assistance of counsel to 
aid him in his defense. These rights being secured 
to the accused, there is little danger of an oppressive 
trial, or an unjust conviction. 

S 588. The state and national constitutions by which 
the general and state governments were instituted and 
empowered to act, were instruments or powers executed 
by the x>eople, to these respective corporations. All 
governmental authority proceeded directly or indirectly 
from the nation, in which alone sovereignty inheres. 
The constitution of the general government enumerated 
the subjects of general jurisdiction, over which that 
government was to preside, and in respect to which, it 

1 eth. Amendment. , 



CONSTITUTIONAL AMENDMENTS. 397 

alone had authority to Administer. The constitution 
likewise, by prohibitions and restrictions, guarded 
against the exercise of certain powers by the states. 
Then, lest there should be any misunderstanding as to 
the source and limitation of governmental authority 
in the general and state governments, it is provided by 
the tenth amendment, that " the powers not delegated 
to the United States by the constitution, nor prohibited 
by it to the states, are reserved to the states respect- 
ively, or to the people." The object of this clause is to 
make the definition and distribution of political powers 
under the administration of the two classes of govern- 
ment more distinct and certain. Power to administer 
in respect to a certain class of subjects, had been given 
to the general government ; and it was desirable that 
the remaining governmental powers should be intrusted 
to state administration for local and domestic purposes. 
Therefore, having defined the subjects of general 
administration, and having given to the general gov- 
ernment full powers in respect thereto, it would have 
accomplished the purpose had in view, to have said, all 
remaining governmental powers shall be exercised by 
the states respectively, had it not been, that the exer- 
cise of certain powers had been prohibited to the states ; 
and besides it was not certain, that in the enumeration 
of subjects committed to the general administration, 
every subject essential to the prosperity, security, and 
•welfare of the nation, had been included. If there 
■were any such subjects or xjowers, they were not to be 
considered as being intrusted to state administration, 
but were reserved to the people themselves. This reser- 
vation to the people shows, that in the estimation of 
those who framed and adopted this constitution, the 
ultimate source of the authority by which the general 
government was instituted, was in the people, and not 
in the states as political corporations. 

§ 589. The last amendment made to the constitution 
of the United States is in these words : Neither slavery 
nor involuntary servitude except as a ijunishment for 
crime whereof the party shall have been duly convicted, 
shall exist within the United States, or any place 
subject to their jurisdiction. Congress shall have power 
to enforce this article by approi)riate legislation.^ 
Under this amendment, congress has full power to 
provide for such political administration in the several 

1 13 U. S. Statutes at Large, p. 5C7. 



898 GOVERNMENT. 

states as to secure freedom to every citizen or inhabitant 
thereof. This provision of the constitution, together 
with section four of article four, gives to the general 
government full power to supervise state legislation 
upon the subject of the political franchise of its citizens 
or inhabitants, whenever, in their judgment, it becomes 
necessary to carry into effect these guarantees. If a 
republican form of government, or freedom from 
slavery or involuntary servitude cannot be secured in 
any state without giving to the people the elective 
franchise, it cannot be doubted that congress has full 
power to do so. 



APPENDIX. 



NO. 1. 

The first step taken by the American Colonies toward 
establishing their nationality, was by the appointment of dele- 
gates to meet in convention and take into consideration their 
actual situation ; and the differences subsisting between them 
and Great Britain. This convention met in Carpenter's Hall, 
in the city of Philadelphia, on the 5th of September, 1774. On 
that occasion delegates attended from New Hampshire, Massa- 
chusetts Bay, Rhode Island and Providence Plantations, Con- 
necticut, from the city and county of New York, and other 
counties in the province of New York, New Jersey, Pennsylva- 
nia, New Castle, Kent and Sussex, on Delaware, Maryland, Vir. 
ginia, and South Carolina. Peyton Randolph was unanimously 
chosen president of the congress, and Charles Thomson was 
unanimously chosen secretary. On the 14th of September, dele- 
gates from North Carolina appeared and took their seats, in the 
congress. This congress continued in session until the 26th of 
October, when, having first passed a resolution (Oct. 22) recom- 
mending delegates to meet again at Philadelphia on the 10th of 
May, 1775, it was dissolved. On the 22d of October, Peyton Ran- 
dolph being unable to attend, on account of indisposition, Henry 
Middleton was chosen to suj^ply his place as president of the 
congress. 

On the 10th of May, 1775, according to the recommendation 
of the preceding congress, the delegates from the same several 
colonies, with the exception of Rhode Island, assembled at the 
State House in Philadelphia, Avhen Peyton Randolph was, a 
second time, unanimously elected president, and Charles Thom- 
son was unanimously chosen secretary, of said second congress. 
On the 24th of May, Peyton Randolph being tinder the neces- 
sity of returning home, the chair became vacant ; and John 
Hancock was unanimously elected president, in his place. 
On the 14th of June it was resolved to raise several companies 
of riflemen, by enlistment, for one year, to serve in the American 



4 APPENDIX. 

Continental Army ; it established the pay of the officers and pri- 
vates, and ajjpointed a committee to prepare rules and regula- 
tions for the government of the army. On the 15th of June, it 
was resolved that a general should be appointed to command 
all the continental forces, raised or to be raised, for the defense 
of American liberty ; and George Washington was unanimously 
elected and commissioned as such general. 

NO. 2. 

COMMISSION OF GEORGE WASHINGTON AS COM- 
MANDER-IN.CHIEF OF THE ARMY OF THE UNITED 
COLONIES. 

" In Congress. The delegates of the United Colonies of New 
Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New 
York, New Jersey, Pennsylvania, New Castle, Kent and Sussex, 
on Delaware, Maryland, Virginia, North Carolina and South 
Carolina, — To George Washington, Esquire : We, reposing 
especial trust and confidence in your patriotism, conduct and 
fidelity, do, by these presents, constitute and appoint you to be 
general and commander-in-chief of the army of the United Colo- 
nies, and of all the forces raised, or to be raised by them, and 
of all others who shall voluntarily ofier their service, and join 
the said army for the defense of the American liberty, and for 
repelling every hostile ' invasion thereof; and you are hereby 
vested with full power and authority to act as you shall think 
for the good and welfare of the service. And we do hereby 
strictly charge and require all officers and soldiers under your 
command to be obedient to your orders, and diligent in the 
exercise of their several duties. And we do also enjoin and 
require you to be careful in executing the great trust reposed 
in you, by causing strict discipline and order to be observed in 
the arm J'-, and that the soldiers are duly exercised, and provided 
with all convenient necessaries. And you are to regulate your 
conduct, in every respect, by the rules and discipline of war 
(as herewith given you), and punctually to observe and follow 
such orders and directions, from time to time, as you shall re- 
ceive from this or a future Congress of the said United Colonies, 
or a committee of Congress, for that pui'pose appointed. This 
commission to continue in force until revoked by this or a future 
Congress. By order of the Congress. John Hancock, Presi- 



APPENDIX. 5 

dent. Dated Pliiladelijliia, June 19, 1775. Attested, Charles 
Thomson, Secretaty.^^ 

On the 1st of August, Congress adjourned to the 5th of Sep- 
tember, 1775. Congress again convened agreeably to their 
adjournment, but did not form a quorum for business until the 
13th inst., when delegates from Georgia appeared, produced 
their credentials and took their seats in Congress. On the 25t]i 
of November, Congress passed resolutions directing seizures and 
capture, under commissions obtained from them, together with 
condemnation of British vessels eraj^loyed in a hostile manner 
against the colonies, and pointed out the mode of trial and con- 
demnation, and the apportionment of prizes. On the 28th of 
November, Congress adopted rules for the regulation of the 
Navy of the United Colonies. On the 2d of December an ex- 
change of prisoners was declared proper. Thus Congress con- 
tinued step by step organizing a force to repel the assaults of 
the British government upon the liberties of the colonies, until, 
on the 4th of July, 1776, they adopted and promulgated to the 
world the Declaration of Independence.* 

NO. 3. 

Ill Congress, July 4, 1776. 
THE UNANIMOUS DECLARATION OF THE THIRTEEN 
UNITED STATES OF AMERICA. 

When-, in the course of human events, it becomes necessary 
for one people to dissolve the political bands which have con- 
uected them with another, and to assume, among the powers of 
the earth, the separate and equal station to which the laws of 
nature and of nature's God entitle them, a decent respect to the 
opinions of mankind requires that they should declare the causes 
whicli impel them to the separation. 

We hold these truths to be self evident — that all men are 
created equal ; that they are endowed by their Creator with cer- 
tain unalienable rights ; that among these are life, liberty and the 
pursuit of happiness; that to secure these rights, governments 
are instituted among men, deriving their just powers from the 
consent of the governed ; that, whenever any form of govern- 
ment becomes destructive of these ends, it is the right of the 
people to alter or to abolish it, and to institute a new govern- 

*See the -writings of Tliomas Jefferson, Vol. 1, p. 10, as to tlie proceedings of 
Congress from June 7, 1776, to July 4. See 1 J^liott's Debates, by Lippincott & 
Co., p. 5G. 5 J 



Q APPEKDIX. 

ment, laying its foundation on such principles, and organ- 
izing its powers in such form, as to them shall seem most 
likely to effect their safety and haj)piness. 

Prudence, indeed, will dictate that governments long estab- 
lished should not be changed for light and transient causes ; and 
accordingly, all experience hath shown that ■ mankind are more 
disposed to suffer while evils are sufferable, than to right them- 
selves by abolishing the forms to which they are accustomed. 
But when a long train of abuses and usurpations, pursuing 
invariably the same object, evinces a design to reduce them 
under absolute despotism, it is their right, it is their duty, to 
throw off such government, and to provide new guards for their 
future security. Such has been the patient sufferance of these 
colonies ; and such is now the necessity which constrains them 
to alter their former systems of government. The history of 
the present king of Great Britain is a history of repeated inju- 
ries and usurpations, all having in direct object the establish- 
ment of an absolute tyranny over these states. To prove this, 
let facts be submitted to a candid world. He has refused his 
assent to laws the most wholesome and necessary for the public 
good. He has forbidden his governors to pass laws of immedi- 
ate and pressing importance, unless susjDended in their operation 
till his assent should be obtained ; and when so suspended, he 
has utterly neglected to attend to them. . 

He has refused to pass other laws, for the accommodation of 
large districts of people, unless those people would relinquish 
the right of representation in the legislature — a right inesti- 
mable to them, and formidable to tyrants only. 

He has called together legislative bodies at places unusual, 
uncomfortable and distant from the repository of their public 
records, for the sole purpose fatiguing them into compliance 
with his measures. 

He has dissolved representative houses repeatedly, for oppo- 
sing, with manly firmness, his invasions on the rights of the 
people. 

He has refused, for a long time after such disso utions, to 
cause others to be elected; whereby the legislative powers, 
incapable of annihilation, have returned to the people at large, 
for their exercise, the state remaining in the mean time, exposed 
to all the dangers of invasion from without, and convulsions 
within. . 



APPENDIX. 7 

He has endeavored to prevent the population of these states, 
for that purpose obstructing tlie laAvs for naturalization of 
foreigners ; refusing to pass others to encourage their migration 
hither, and raising the conditions of new appropriations of 
lands. 

He has obstructed the administration of justice, by refusing 
his assent to laws for establishing judiciary powers. 

He has made judges dependent on his will alone for the ten- 
ure of their offices, and the amount and payment of their 
salaries. 

He has erected a multitude of new offices, and sent hither 
swarms of officers, to harass our people, and eat out their sub- 
stance. He lias kept among us, in times of jDcace, standing 
armies, without the consent of our legislatures. 

He has affiacted to render the military independent of, and 
superior to, the civil power. 

He has combined with others to subject us to a jurisdiction 
foreign to our constitution and unacknowledged by our laws ; 
giving his assent to their acts of pretended legislation. 

For quartering large bodies of armed troops among us : — For 
protecting them, by a mock trial, from punishment for any mur- 
ders which they should commit on the inhabitants of these 
states : — For cutting off our trade with all parts of the world : 
For imposing taxes on us without our consent : — For depriving 
us, in many cases, of the benefits of trial by jury : — For trans- 
porting us beyond seas to be tried for pretended offenses : — For 
abolishing the free system of English laws in a neighboring 
j)rovince, establishing therein an arbitrary government, and 
enlarging its boundaries, so as to render it at once an examj^le 
and fit instrument for introducing the same absolute rule into 
these colonies : — For taking away our charters, abolishing our 
most valuable laws, and altering, fundamentally, the forms of 
our governments : — For suspending our own legislatures, and 
declaring themselves invested with power to legislate for us in 
all cases Avhatsoever. 

He has abdicated government here, by declaring us out of his 
protection and waging war against us. He has plundered our 
seas, ravaged our coasts, burnt our towns, and destroyed the 
lives of our people. 

He is at this time transporting large arrqies of foreign mer- 
cenaries to complete the work of death, desolation and tyranny 



8 APPENDIX. 

already begun, with, circumstances of cruelty and perfidity 
scarcely paralleled in the most barbarous ages, and totally 
unworthy the head of a civilized nation. 

lie has constrained our fellow-citizens, taken captive on the 
high seas, to bear arms against their country, to become the 
executioners of their friends and brethren, or to fall themselves 
by their hands. 

He has excited domestic insurrections amongst us, and has 
endeavored to bring on the inhabitants of our frontiers the merci- 
less Indian savages, Avhose known rule of warfare is an undis- 
tinguished destruction of all ages, sexes and conditions. 

In every stage of these oppressions we have petitioned for 
redress in the most humble terras ; our repeated petitions have 
been answered only by rej)eated injury. A prince, whose 
character is thus marked by every act Avhich may define a tyrant, 
is unfit to be the ruler of a free people. 

Nor have Ave been wanting in attentions to our British breth- 
ren. We have warned them from time to time, of attempts by 
their legislature to extend an unwarrantable jurisdiction over us. 
"VVe have reminded them of the circumstances of our emigra- 
tion and settlement here. We have appealed to their native jus- 
tice and magnanimity, and Ave have conjured them, by the ties of 
our common kindred, to disavoAV these usurpations, which Avould 
inevitably interrupt our connections and correspondence. They 
too have been deaf to the voice of justice and consanguinity. 
We must, therefore, acquiesce in the necessity which denounces 
our separation, and hold them, as Ave hold the rest of mankind, 
enemies in Avar, in peace friends. 

We, therefore, the representatives of the United States of 
America, in General Congress assembled, appealing to the 
Supreme Judge of the Avorld for the rectitude of our intentions, 
do, in the name and by the authority of the good people of these 
colonies, solemnly j^ublish and declai-e, that these United Colo- 
nies are, and of right ought to be, free and independent states ; 
that they are absolved from all allegiance to the British croAvn, 
and that all political connections betAveen them and the state of 
Great Britain is, and ought to be, totally dissolved ; and that, 
as free and independent states, they have full poAver, to levy 
Avar, conclude peace, contract alliances, establish commerce, and 
to do all other acts and things Avhich independent states may of 
right do. And for the support of this declaration, Avith a firni 



APPENDIX. 



reliance on the protection of Divine Providence, we mutually 
pledge to each other our lives, our fortunes, and our sacred 
honor. 

JOHN HANCOCK. 



NEW HAMPSniRK. 

Josi.ili Bartlett, 
William Whipple, 
Matthew Thornton. 

MASSACnUSETTS BAY. 

Samuel Adam?, 
John Adams, 
Robert Ti-eat Paine, 
Elbridge Gerry. 

RnODE ISLAND, &C. 

Stephen Hopkins, 
William Elleiy. 

CONNECTICUT. 

Roger Sherman, 
Samuel Huntington, 
William Williams, 
Oliver Wolcott. 

NEW YORK. 

William Floyd, 
Philip Livingston, 
Francis Lewis, 
Lewis Morris. 



NEW JERSEY. 



Richard Stockton, 
John Witherspoon, 
Fi'ancis Hopkmson, 
John Hart, 
Abraham Clark. 

PENNSYLVANIA. 

Robert Morris, 
Benjamin Rush, 
Benjamin Franklin, 
John Morton, 
George Clymer, 
James Smith, 
George Taylor, 
James Wilson, 
George Ross. 

DELAWARE. 

Cesar Rodney, 
George Read, 
Thomas M'Kean. 

MARYLAND. 

Samuel Chase, 
William Paca, 
Thomas Stone, 
C. Carroll, of Carrollton. 



VIRGINIA. 

George Wythe, 
Richard Henry Lee, 
Thomas Jefferson, 
Benjamin Harrison, 
Thomas Nelson, Jr., 
Francis Lightfoot Lee, 
Carter Braxton. 

NORTH CAROLINA. 

William Hooper, 
Joseph Hewes, 
John Penn. 

SOUTH CAROLINA. 

Edward Rutledge, 
Thomas Heyward, Jr., 
Thomas Lynch, Jr. 
Arthur Middleton. 



Button Gwinett, 
Lyman Hall, 
George Walton. 



jsro. 4r. 

While the declaration of independence was under considera- 
tion Congress took measures for the formation of a political 
union of the colonies. They appointed a committee to prepare 
a form of Confederation between the colonies, which consisted 
of one member from each colony. Mr. Bartlet, Mr. S. Adams, 
Mr. Hopkins, Mr. Sherman, Mr. R. R. Livingston, Mr. Dickinson, 
Mr. M'Kean, Mr. Stone, Mr. Nelson, Mr. Hewes, Mr. E. Rutledge 
and Mr. Gwinnett were appointed such committee. This com- 
mittee reported the draft of Articles of Confederation, which 
was debated and amended from time to time, until on the 15th 
of November, 1777, the Articles were agreed to by Congress. 
They were submitted to the legislatures of the several states, to 



10 APPENDIX. 

be considered, and if agreed to, they were advised to authorize 
their delegates in Congress to ratify the same. On the 9th day 
of July, 1778, the delegates of the several states having been 
authorized by the legislatures of their respective states to ratify 
the Articles of Confederation, proceeded to do so as follows : 

ARTICLES OF CONFEDERATION 

To ALL TO WHOM THESE PeESENTS SHALL COME, 

We, the undersigned, Delegates of the States affixed to our 
names, send greeti7ig : 
Wheeeas the delegates of the United States of America, in 
Congress assembled, did, on the fifteenth day of November, in 
the year of our Lord one thousand seven hundred and seventy- 
seven, and in the second year of the Independence of America, 
agree to certain Articles of Confederation and Perpetual Union, 
between the states of New Hampshire, Massachusetts Bay, 
Rhode Island and Providence Plantations, Connecticut, New 
York, New Jersey, Pennsylvania, Delaware, Maryland, Virginiaj 
North Carolina, South Carolina, and Georgia, in the words 
following, viz. : 

Articles of Confederation and Perpetual Union, between the 
States of New Hampshire, Massachusetts Bay, JRhode Islaiid 
and Providence Plantations, Connecticut, New York, New 
Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
Carolina, South Carolina, and Georgia. 

Article 1. The stj'-le of this confederacy shall be, "The 
United States of America." ... 

Art. 2. Each state retains its sovereignty, freedom, and 
independence, and every power, jurisdiction, and right, which 
is not by this Confederation expressly delegated to the United 
States in Congress assembled. 

Art. 3. The said states hereby severally enter into a firm 
league of friendship with each other for their common defence, 
the security of their liberties, and their mutual and general 
welfare ; binding themselves to assist each other against all force 
ofiered to, or attacks made upon, them, or any of them, on 
account of religion, sovei'eignty, trade, or any other pretence 
whatever. 

Art. 4. The betterto secure and perpetuate mutual friendship 
arid intercourse among the people of the different states in this 



APPENDIX. IX 

Union, the free inhabitants of each of these states — pauijers, 
vagabonds, and fugitives from justice, excepted — shall be enti- 
tled to all privileges and immunities of free citizens in the 
several states; and the people of each state shall have free 
ingress and regress to and from any other state, and shall enjoy- 
therein all the privileges of trade and commerce, subject to the 
same duties, impositions, and restrictions, as the inhabitants 
thereof, respectively, provided that such restrictions shall not 
extend so far as to prevent the removal of property imported 
into any state from any other state, of which the owner is an 
inhabitant ; provided also, that no imposition, duty, or restric- 
tion, shall be laid by any state on the property of the United 
States, or either of them. 

If any person, guilty of, or charged with, treason, felony, or 
other high misdemeanor, in any state, shall flee from justice, 
and be found in any of the United States, he shall, upon demand 
of the governor or executive power of the state from which he 
fled, be delivered up, and removed to the state having jurisdic- 
tion of his offence. 

Full faith and credit shall be given, in each of these states, to 
the records, acts, and judicial proceedings, of the courts and 
magistrates of every other state. 

Art. 5. For the more convenient management of the general 
interests of the United States, delegates shall be annually 
appointed in such manner as the legislature of each state shall 
direct, to meet in Congress on the first Monday in November, 
in every year, with a power reserved to each state, to recall its 
delegates, or any of them, at any time within the year, and to 
send others in their stead for the remainder of the year. 

No state shall be represented in Congress by less than two, 
nor by more than seven members ; and no person shall be 
capable of being a delegate for more than three years in any 
term of six years ; nor shall any person, being a delegate, be 
capable of holding any oflSce under the United StateSj for which 
he, or another for his benefit, receives any salary, fees, or 
emolument of any kind. 

Each State shall maintain its own delegates in a meeting of 
the states, and while they act as members of the committee 
of the states. 

In determining questions in the United States in Congress 
assembled, each state shall have one vote. 



12 APPENDIX. 

Freedom of siDeech and debate in Congress shall not ho 
impeached or questioned in any court or place out of Congress ; 
and the members of Congress shall be protected in their persons 
from arrests and imprisonments, during the time of tiieir going 
to and from, and attendance on, Congress, except for treason, 
felony, or breach of the peace. 

Art. 6. No state, without the consent of the United States 
in Congress assembled, shall send any embassy to, or receive 
any embassy from, or enter into any conference, agreement, 
alliance, or treaty, with any king, prince, or state; nor shall 
any person holding any office of profit or trust under the United 
States, or any of them, accept of any present, emolument, office, 
or title, of any kind whatever, from any king, prince, or foreign 
state; nor shall the United States in Congress assembled, or 
any of them, gi-ant any title of nobility. 

No two or more states shall enter into any treaty, confedera- 
tion, or alliance Avhatever between them, without the consent 
of the United States in Congress assembled, specifying accu- 
rately the purj)Oses for which the same is to be entered into, 
and how long it shall continue. 

No state shall lay any imposts or duties, which may interfere 
with any stipulations in treaties entered into, by the United 
States in Congress assembled, with any king, prince, or state, 
in pursuance of any treaties already proposed by Congress to 
the courts of France and Spain. 

No vessel of war shall be kept up in time of peace by any 
state, except such number only as shall be deemed necessary, 
by the United States in Congress assembled, for the defense of 
such state, or its trade ; nor shall any body of forces be kept 
up by any state, in time of peace, except such number only as, 
in the judgment of the United! States in Congress assembled, 
shall be deemed requisite to garrison the forts necessary for the 
defense of such state ; but every state shall always keep up a 
well-regulated and disciplined militia, sufficiently armed and 
accoutered, and shall provide, and have constantly ready for use, 
in public stores, a due number of field-pieces and tents, and a 
proper quantity of arms, ammunition, and camp equipage. 

No state shall engage in any war without the consent of the 
United States in Congress assembled, unless such state be actu- 
ally invaded by enemies, or shall have received certain advice 
of a resolution being formed by some nation of Indians to 



APPENDIX. 13 

invade such state, and the danger is so imminent as not to admit 
of a delay till the United States in Congress assembled can be 
consulted ; noi' shall any state grant commissions to any ships 
or vessels of war, nor letters of marque or reprisal, except it be 
after a declaration of war by the United States in Congress 
assembled, and then only against the kingdom or state, and the 
subjects thereof, against which war has been so declared, and 
under such regulations as shall be established by the United 
States in Congress assembled, unless such state be infested by 
pirates; in which case, vessels of war may be fitted out for that 
occasion, and kept so long as the danger shall continue, or until 
the United States in Congress assembled shall determine other- 
wise. 

Art. 7. When land forces are raised by any State for the 
common defense, all officers of or under the rank of colonel 
shall be appointed by the legislature of each State, respectively, 
by whom such forces shall be raised, or in such manner as such 
State shall direct ; and all vacancies shall be filled up by the 
State which first made the appointment. 

Art. 8. All charges of war, and all other expenses that shall 
be incurred for the common defense or general warfare, and 
allowed by the United States in Congress assembled, shall be 
defrayed out of a common treasury, which shall be supplied by 
the several States, in proportion to the value of all land, within 
each state, granted to or surveyed for any person, as such land, 
and the buildings and improvements thereon, shall be estima- 
ted, according to such mode as the United States in Congress 
assembled shall, from time to time, direct and appoint. 

The taxes for paying that proportion shall be laid and levied 
by the authority and direction of the legislatures of the several 
States, Avithin the time agreed upon by the United States in 
Congress assembled. 

Art, 9. The United States in Congress assembled shall have 
the sole and exclusive right and power of determining on peace 
and war, except in the cases mentioned in the sixth article — of 
sending and receiving ambassadors — entering into treaties and 
alliances ; provided that no treaty of commerce shall be made 
whereby the legislative power of the respective states shall be 
restrained from imposing such imposts and duties on foreigners 
as their own people are subjected to, or from prohibiting the 
exportation or importation of any species of goods or commodi- 
52 



14 APPENDIX. 

ties whatsoever — of establishing rules • for deciding, in all 
cases, what captures, on land or water, shall be legal, and in 
what manner prizes taken by land or naval forces in the service 
of the United States shall be divided or appropriated — of 
gi-anting letters of marque and repi-isal in times of peace — 
appointing courts for the trial of piracies and felonies commit- 
ted on the high seas, and establishing courts for receiving and 
determining finally appeals in all cases of capture ; provided 
that no member of Congress shall be appointed a judge of any 
of the said courts. 

The United States in Congress assembled shall also be the 
last resort on appeal in all disputes and differences now subsist- 
ing, or that hereafter may arise, between two or more states, 
concerning boundary, jurisdiction, or any other cause whatever; 
which authority shall always be exercised in the manner follow- 
ing : Whenever the legislative or executive authority, or lawful 
agent, of any state in controA'ersy with another, shall present a 
petition to Congress, stating the matter in question, and pray- 
ing for a hearing, notice thereof shall be «given by order of 
Congress to the legislative or executive authority of the other 
state in controversy, and a day assigned for the appearance of 
the parties, by their lawful agents, who shall then be directed 
to apj)oint, by joint consent, commissioners or judges to consti- 
tute a court for hearing and determining the matter in 
question ; but if they cannot agree, Congress shall name three 
persons out of each of the United States, and from the list of 
such persons each party shall alternately strike out one, the 
petitioners beginning, until the number shall be reduced to thir- 
teen ; and from that number not less than seven nor more than 
nine names, as Congress shall direct, shall, in the presence of 
Congress, be drawn out by lot ; and the persons whose names 
shall be so drawn, or any five of them, shall be commissioners 
or judges, to hear and finally determine the controversy, so 
always as a major part of the judges, who shall hear the cause, 
shall agree in the determination ; and if either party shall 
neglect to attend at the day appointed, without showing 
reasons which Congress shall judge suflicient, or being present, 
shall refuse to strike, the Congress shall proceed to nominate 
three persons out of each state, and the Secretary of Congress 
shall strike in behalf of such party absent or refusing ; and the 
judgment and sentence of the court, to be appointed in the 



APPENDIX. 15 

manner before prescribed, shall be final and conclusive ; and if 
any of the parties shall refuse to submit to the authority of such 
court, or to appear or defend their claim or cause, the court shall 
nevertheless proceed to pronounce sentence or judgment, which 
shall, in like manner, be final and decisive, the judgment 
or sentence, and other proceedings, being in either case trans- 
mitted to Congress, and lodged among the acts of Congress for 
the security of the parties concerned ; provided that every 
commissioner, before he sits in judgment, shall take an oath, to 
be administered by one of the judges of the supreme or super- 
ior court of the state, where the cause shall be tried, " v:ell and 
truly to hear and determine the matter in question^ according 
to the best of his judgment^ without favor ^ affection, or hope of 
reward ; " provided, also, that no state shall be deprived of terri- 
tory for the benefit of the United States. 

All controversies concerning the private right of soil, claimed 
tinder different grants of two or more states, whose jurisdic- 
tion, as they may respect such lands, and the states which 
passed such grants, are adjusted, the said grants, or either of 
them, being at the same time claimed to have originated ante- 
cedent to such settlement of jurisdiction, shall, on the petition 
of either party to the Congress of the United States, be finally 
determined, as near as may be, in the same manner, as is before 
prescribed for deciding disputes respecting territorial jurisdic- 
tion between different states. 

The United States in Congress assembled shall also have the 
sole and exclusive right and power of regulating the alloy and 
value of coin struck by their own authority, or by that of the 
respective states ; fixing the standard of weights and measures 
throughout the United States ; regulating the trade and mana- 
ging all affairs with the Indians not members of any of the 
states, provided that the legislative right of any state within 
its own limits be not infringed of violated ; establishing and 
regulating post-offices from one state to another throughout 
all the United States, and exacting such postage on the papers 
passing through the same as may be requisite to defray the 
expenses of the said office; appointing all officers of the land 
forces in the service of the United States, excepting regimental 
officers ; appointing all the officers of the naval forces, and 
commissioning all officers whatever in the service of the United 



16 APPENDIX. 

States ; making rules for the government and regulation of the 
said land and naval forces, and directing their operations. 

The United States in Congress assembled, shall have authority 
to appoint a committee to sit in the recess of Congress, to be 
denominated "a committee of the states," and to consist of one 
delegate from each state; and to appoint such other committees 
and civil officers as may be necessary for managing the general 
afiairs of the United States under their direction — to appoint 
one of their number to preside, provided that no person be 
allowed to serve in the office of president more than one year 
in any term of three years — to ascertain the necessary sums of 
money to be raised for the service of the United States, and to 
aj)];)roiDriate and apply the same for defraying the public expenses 
— to borrow money or emit bills on the credit of the United 
States, transmitting, every half year, to the respective states, an 
account of the sums of money so borrowed or emitted — to build 
and equip a navy — to agree upon the number of land forces, 
and to make requisitions from each state for its quota, in pro- 
portion to the number of white inhabitants in such state; which 
requisitions shall be binding ; and thereupon the legislature of 
each state shall appoint the regimental officers, raise the men, 
and clothe, arm, and equip them in a soldier-like manner, at the 
expense of the United States; and the officers and men so clothed, 
armed, and equipped, shall march to the place appointed, and 
within the time agreed on by the United States in Congress 
assembled ; but if the United States in Congress assembled shall, 
on consideration of circumstances, judge proper that any state 
should not raise men, or should raise a smaller number than its 
quota, and that any other state should raise a greater number 
of men than the quota thereof, such extra number shall be raised, 
officered, clothed, armed and equipped, in the same manner as 
the quota of such state, unless the legislature of such state shall 
judge that such extra number cannot be safely spared out of 
the same ; in Avhich case they shall raise, officer, clothe, arm and 
equip, as many of such extra number as they judge can be safely 
spared. And the officers and men so clothed, armed and equip- 
ped, shall march to the place appointed, and within the time 
agreed on by the United States in Congress assembled. 

The United States in Congress assembled, shall never engage 
in a war ; nor grant letters of marque and rej)risal in time of 
peace ; nor enter into any treaties or alliances ; nor coin money ; 



APPENDIX. 17 

nor regulate the value thereof; nor ascertain the suras and 
expenses necessary for the defense and welfare of the United 
Stater, or any of them; nor emit bills; nor borrow money on 
the credit of the United States; nor appropriate money; nor 
agree upon the number of vessels of war to be built or purchased, 
or the number of land or sea forces to be raised ; nor appoint a 
commander-in-chief of the army or navy,— unless nine states 
assent to the same ; nor shall a question on any other point, 
except for adjourning from day to day, be determined, unless by 
the votes of a majority of the United States in Congress 
aseembled. 

The Congress of the United States shall have power to adjourn 
to any time within the year, and to any place within the United 
shall be appointed by the states within which their offices are 
States, so that no period of the adjournment shall be for a longer 
duration than the space of six months ; and shall publish the 
journal of tlieir proceedings monthly, except such parts thereof, 
relating to treaties, alliances, or military operations, as in their 
judgment requires secrecy; and the yeas and nays of the dele- 
gates of each state on any question shall be entered on the 
journal when it is desired by any delegate ; and the delegates 
of a state, or any of them, at his or their request, shall be 
furnished with a transcript of the said journal, except such 
parts as are above excepted, to lay before the legislatures of the 
several states. 

Art. 10. The committee of the states, or any nine of them, 
shall be authorized to execute, in the recess of Congress, such 
of the powers of Congress as the United States in Congress 
assembled, by the consent of nine states, shall, from time to 
time, think expedient to vest them with ; provided that no 
power be delegated to the said committee, for the exercise of 
which, by the Articles of Confederation, the voice of nine states 
in the Congress of the United States assembled is requisite. 

Art. 11. Canada, acceding to this Confederation, and joining 
in the measures of the United States, shall be admitted into, 
and entitled to, all the advantages of this union ; but no other 
colony shall be admitted into the same, unless such admission 
be agreed to by nine states. 

Art. 12. All bills of credit emitted, moneys borrowed, and 
debts contracted, by or under the authority of Congress, before 
the assembling of the United States in pursuance of the present 



18 APPENDIX. 

Confederation, shall be deemed and considered as a charge 
against the United States, for j^ayment and satisfaction whereof 
the said United States, and the public faith, are hereby solemnly 
pledged. 

Aet. 13. Every state shall abide by the determination of the 
United States in Congress assembled, on all questions which, by 
this Confederation, are submitted to them. And the articles 
of this Confederation shall be inviolably observed by every 
state, and the union shall be perpetual ; nor shall any altera- 
tion, at any time hereafter, be made in any of them, unless 
such alteration be agreed to in a Congress of the United 
States, and be afterwards confirmed by the legislature of every 
state. 

RATIFICATION. 

And whereas it has pleased the Great Governor of the world 
to incline the hearts of the legislatures we respectfully represent 
in Congress, to approve of and to authorize us to ratify the said 
Articles of Confederation and Perpetual Union : JShow ye. 
That we, the undersigned delegates, by virtue of the power and 
authority to us given for that purpose, do, by these presents, in 
the name and in behalf of our respective constituents, fully and 
entirely ratify and confirm each and every of the said Articles of 
Confederation and Perpetual Union, and all and singular the 
matters and things therein contained; and we do further 
solemnly plight and engage the faith of our respective constit- 
uents, that th6y shall abide by the determinations of the 
United States in Congress assembled, on all questions which, by 
the said Confederation, are submitted to them ; and that the 
articles thereof shall be inviolably observed by the states we 
respectively represent ; and that the union shall be perpetual. 

In witness whereof, we liave hereunto set our hands, in Congress. Done 
at Pliiladelpliia, in the state of Pennsylvania, the ninth day of July, in 
the year of our Lord one thousand seven hundred and seventy-eight, 
and in the third year of the Independence of America. 

On the part and iehalf of the state of New HampsMre. 

Josiah Bartlett, John Wentworth, Jun., Aug. 8, 1778. 

On the part and hehalf of the state of Massachusetts Bay. 

Jolm Hancock, Francis Dana, 

Samuel Adams, James Lovell, 

Elbridge. Gerry, . Samuel Holten. 



• APPENDIX. 19 

On the part and helialf of the state of Rhode Island and Providence 
Plantations. 

William Ellery, John Collins. 

Henry Marchant, 

On the part and behalf of the state of Connecticut. 

Eoger Sherman, Titus Hosmer, 

Samuel Huntington, Andrew Adams. 

Oliver Wolcott, 

On the part and behalf of the state of New York. 

Jas. Diiane, Wm. Duer, 

Fra. Lewis, Gouv. Morris. 

On the part and behalf of the state of New Jersey. 
Jno. Witherspoon, Nath. Scudder, Nov. 26, 1778. 

On the part and behalf of the state of Pennsylvania. 
Robert Morris, William Clingan, 

Daniel Roberdeau, Joseph-Reed, 22d July, 1778. 

Jona. Bayard Smith, 

On the part and behalf of the state of Delaware. 

Thos. M'Kean, Feb. 13, '79, ' Nicholas Van Dyke. 

John Dickinson, May 5, '79, 

On the part and behalf of the state of Maryland. 

John Hanson, March 1, '81, Daniel Carroll, do. 

On the part and behalf of the state of Virginia. 

Richard Henry Lee, Jno. Harvie, 

John Banister, Francis Lightfoot Lee. 

Thomas Adams, 

On the part and behalf of the state of North Carolina. 
John Penn, July 21, '78, Corns. Harnett. 

Jno. Williams, 

On the part and behalf of the state of South Carolina. 
Henry Laurens, Richard Hutson, 

William Henry Drayton, Thos. Heyward, Jun. 

Jno. Mathews, 

On the part and behalf of the state of Georgia. 
Jno. Walton, July 24, '78, Edw'd Langworthy. 

Edw'd Telfair, 

After the termination of the war the defects in the Articles 
of Confederation became apparent. The Congress provided for, 
had not been invested with sufficient j^owers to enable it to pro- 
vide for the exigencies of national existence. It could 
recommend, but it had no power to require compliance with its 
recommendations. It could not even raise a dollar for national pur- 
poses. Its attention was necessarily turned immediately to the 
subject of providing a revenue as a means of preserving the 
national faith and credit. But it was continually baffled in its 



20 APPENDIX. 

efforts, by the jealousies and antagonisms existing among the 
several states. On the 18th of April, 1783, Congress, by nine 
States, adopted the following recommendations to be submitted 
to the several states : 

isro. 5. 

Mesolved, That it be recommended to the several states, as 
indispensably necessary to the restoration of public credit, and 
to the punctual and honorable discharge of the public debts, to 
invest the United States in Congress assembled with a power 
to levy, for the use of the United States, the following duties 
upon goods imported into the said states from any foreign port, 
island, or plantation : 

Upon all rum of Jamaica proof, per gallon, 4-90ths of a dollar. 

Upon all other spirituous liquors,. 3-90ths do. 

Upon Maderia wine, , 12-90ths do. 

Upon all other wines, 6-90ths do. 

Upon common Bohea tea, per lb., 6-90ths do. 

Upon all other teas, 24-90ths do. 

Upon pepper, per lb., 3-90ths do. 

Upon brown sugar, per lb., -J-gOth do. 

Upon loaf sugar, 2-90ths do. 

Upon all other sugars, l-90th do. 

Upon molasses, per gallon, l-90th do. 

Upon cocoa and coffee, per lb., l-90th do. 

Upon all other goods, a duty of five per cent, ad valorem^ at 
the time and place of importation. 

Provided, That none of the said duties shall be applied to any 
other purpose than the discharge of the interest or principal of 
the debts contracted, on the faith of the United States, for sup- 
porting the war, agreeably to the resolution of the 16th day of 
December last, nor be continued for a longer term than twenty- 
five years ; and provided, that the collectors of the said duties 
shall be appointed by the states within which their offices are 
to be respectively exercised ; but when so appointed, shall be 
amenable to, and removable by, the United States in Congress 
assembled, alone; and in case any state shall not make such 
appointment within one month after notice given for that 
purpose, the appointment may be made by the United States in 
Congress assembled. 



APPENDIX. 21 

That it be further recommended to the several states to estab- 
lish, for a term limited to twenty-five years, and to appropriate 
to the discharge of the interest and principal of the debts con- 
tracted on the faith of the United States for supporting the 
war, substantial and effectual revenues, of such nature as they 
may judge most convenient, for supplying their respective 
proportions of one million five hundred thousand dollars, 
annually, exclusive of the afore-mentioned duties, which pro- 
portion shall be fixed and equalized from time to time, according 
to the rule which is, or may be, prescribed by the Articles of 
Confederation; and in case the revenues established by any 
state shall at any time yield a sum exceeding its actual propor- 
tion, the excess shall be refunded to it ; and in case the revenues 
of any state shall be found to be deficient, the immediate defi- 
ciency shall be made uj) by such state with as little delay as 
possible, and a future deficiency guarded against by an enlarge- 
ment of the revenues established ; Provided, that, until the rule 
of the Confederation can be carried into practice, the projDor- 
tions of the said one million five hundred thousand dollars shall 
be as follows, viz : 



New Hampshire, 52,708 

Massachusetts, 224,427 

Rhode Island, 32,318 

Connecticut, 132,091 

New Yorlc, 128,243 

New Jersey, 83,358 

Pennsylvania, 205,189 



Delaware, 22,443 

Maryland, 141,517 

Virginia, 256,487 

North Carolina, 109,006 

South Carolina, 96,183 

Georgia, 16,030 



The said last-mentioned revenues to be collected by j^ersons 
appointed as aforesaid, but to be carried to the separate credit 
of the states within which they shall be collected. 

That an annual account of the j^roceeds and ai^plication of all 
the afore-mentioned revenues shall be made out and transmitted 
to the several states, distinguishing the proceeds of each of the 
specified articles, and the amount of the whole revenue received 
from each state, together with the allowances made to the 
several ofiicers employed in the collection of the said revenues. 

That none of the preceding resolutions shall take effect until 
all of them shall be acceded to by every state; after which 
unanimous accession, however, they shall be considered as form- 
ing a mutual compact, among all the states, and shall be 
irrevocable by any one of them, without the concurrence of the 
whole, or a majority of the United States in Congress assembled. 
53 



22 APPENDIX. 

That, as a further means, as well of hastening the extinguish- 
ment of the debts, as of establishing the harmony of the United 
States, it be recommended to the states which have passed no 
acts towards complying with the resolutions of Congress of 
the 6th of September, and 10th of October, 1780, relative to the 
cession of territorial claims, to make the liberal cessions therein 
recommended, and to the states which may have passed acts 
complying with the said resolutions in part only, to revise and 
complete such compliance. 

That, as a more convenient and certain rule of ascertaining 
the proportions to be supplied by the states respectively to the 
common treasury, the following alteration in the Articles of 
Confederation and perpetual Union between these states, be, 
and the same is hereby agreed to in Congress ; and the several 
states are advised to authorize their respective delegates to sub- 
scribe and ratify the same, as part of the said instrument of 
union, in the words following, to wit : 

So much of the 8th of the Articles of Confederation and Per- 
petual Union, between the thirteen states of America, as is 
contained in the words following, to wit, " All charges of war, 
and all other exjDcnses that shall be incurred for the common 
defense or general welfare, and allowed by the United States in 
Congress assembled, shall be defrayed out of a common treasury, 
which shall be supplied by the several states, in proportion to the 
value of all land within each state, granted to or surveyed for 
any person, as such land, and the buildings and improvements 
thereon shall be estimated, according to such mode as the United 
States in Congress assembled shall from time to time direct and 
appoint," is hereby revoked and made void ; and in place thereof, 
it is declared and concluded, the same having been agreed to 
in a Congress of the United States, that all charges of war, and 
all other expenses, that have been, or shall be, incurred for the 
common defense or general welfare, and allowed by the United 
States in Congress assembled, except so far as shall be other- 
wise provided for, shall be defrayed out of a common treasury, 
which shall be supplied by the several states in proportion to 
the whole number of white and other free citizens and inhabit- 
ants, of every age, sex and condition, including those bound to 
servitude for a term of years, and three-fifths of all other persons 
not comprehended in the foregoing description, except Indians 
not paying taxes, in each state ; which number shall be trienni- 



APPENDIX. 23 

ally taken and transmitted to the United States in Congress 
assembled, in such mode as they sliall direct and appoint. 

April 26, 1783. — The committee, consisting of Mr. Madison, 
Mr. Ellsworth and Mr. Hamilton, appointed to prepare an 
address to the states, to accompany the act of the 18th of this 
month, reported a draft, "vyhich being read and amended, was 
agreed to, as follows : 

NO. 6. 

ADDPvESS TO THE STATES, BY THE UNITED STATES 
IN CONGRESS ASSEMBLED. 

To accompany the Act of April 18, 178.3. 

The prospect which has for some time existed, and Avhich is 
now happily realized, of a successful termination of the war, 
together Avith tho critical exigencies of public afiairs, has made 
it the duty of Congi-ess to review and provide for the debts 
which the war has left upon the United States, and to look for- 
ward to the means of obviating dangers which may interrupt 
the harmony and tranquillity of the confederacy. The result of 
their mature and solemn deliberations, on these great objects, is 
contained in their several recommendations of the 18th inst., 
herewith transmitted. Although these recommendations speak 
themselves the principles on which they are founded, as well as 
the ends which they propose, it will not be improper to enter 
into a few explanations and remarks, in order to place in a 
stronger view the necessity of complying with them. 

The first measure recommended is, effectual provision for the 
debts of the United States. The amount of these debts, as far 
as they can now be ascertained, is 42,000,375 dollars. To dis- 
charge the principal of this aggregate debt at once, or in any short 
period, is evidently not within the compass of our resources; 
and, even if it could be accomplished, the ease of the 
community would require that the debt itself should be left to 
a course of gradual extinguishment, and certain funds be provi- 
ded for paying, in the mean time, the annual interest. The 
amount of the annual intei'est is computed to be 2,415,956 
dollars. Funds, therefore, which will certainly and punctually 
produce this annual sum, at least, must be provided. 
Observations on Kevenue. 

In devising these funds, Congress did not overlook the mode 
of supplying the common treasury, provided by the Articles of 



24 APPENDIX. 

Confederation ; but, after the most respectful consideration of 
that mode, they were constrained to regard it as inadequate, 
and inapiDlicable to the form into which the public debt must be 
thrown. The delays and uncertainties incident to a revenue to 
be established and collected, from time to time, by thirteen 
independent authorities, is, at first view, irreconcilable with the 
punctuality essential in the discharge of the interest of a national 
debt. Our own experience, after making every allowance for 
transient impediments, has been a sufficient illustration of this 
truth. Some departure, therefore, in the recommendation of 
Congress, from the Federal Constitution, was unavoidable ; 
but it will be found to be as small as could be reconciled with 
the object in view, and to be supported, besides, by solid consid- 
erations of interest and sound policy. 

The fund which presented itself on this, as it did on a former 
occasion, was a tax on imports. The reasons which recommen- 
ded this branch of revenue, have heretofore been stated in an 
act, of which a copy, No. 2, is now forwarded, and need not be 
here repeated. It will suffice to recapitulate, that taxes on con- 
sumption are always least burdensome, because they are least 
felt, and are borne too by those who are both willing and able 
to pay them ; that, of all taxes on consumption, those on foreign 
commerce are most compatible with the genius and policy of 
free states; that, from the relative positions of some of the more 
commercial states, it will be impossible to bring this essential 
resource into use without a concerted uniformity ; that this uni- 
formity cannot be concerted through any channel so properly 
as through Congress, nor for any purpose so aptly as for paying 
the debts of a revolution, from which an unbounded freedom 
has accrued to commerce. 

In renewing this proposition to the states, we have not been 
unmindful of the objections which heretofore frustrated the 
unanimous adoption of it. We have limited the duration of 
the revenue to the term of twenty-five years ; and we have left 
to the states themselves the appointment of the officers who 
are to collect it. If the strict maxims of national credit alone 
were to be consulted, the revenue ought manifestly to be 
coexistent with the object of it, and the collection placed in 
every respect under that authority which is to dispense the 
former, and is responsible for the latter. These relaxations 
will, we trust, be regarded, on one hand, as the effisct of a 



APPENDIX. 25 

disposition in Congress to attend, at all times, to tlie senti- 
ments of those whom they serve, and, on the other hand, as a 
proof of tlieir anxious desire that provision may be made, in 
some way or other, for an honorable and just fulfillment of the 
engagements Avhich they have formed. 

To render this fund as productive as- possible, and, at the 
same time, to narrow the room for collusions and frauds, it has 
been judged an improvement of the plan, to I'ecommend a 
liberal duty on such articles as are most susceptible of a tax 
according to their quantity, and are of most equal and general 
consumption ; leaving all other articles, as heretofore i^roi^osed, 
to be taxed according to their value. 

The amount of this fund is computed to be 915,950 dollars. 
Accuracy, in the first essay, on so complex and fluctuating a 
subject, is not to be expected. It is presumed to be as near the 
truth as the defect of proper materials would admit. 

The residue of the computed interest is 1,500,000 dollars, and 
is referred I to the states to be provided for by such funds as 
they may judge most convenient. Here, again, the strict max- 
ims of public credit gave way to the desire of Congress to 
conform to the sentiments of their constituents. It ought not 
to be omitted, however, with respect to this portion of the 
revisnue, that the mode in which it is to be supplied varies so 
little from that pointed out in the Articles of Confederation, 
and the variations are so conducive to the great object pro- 
posed, that a ready and unqualified compliance on the part of 
the states may be the more justly expected. In fixing the 
quotas of this sum, Congress, as may be well imagined, were 
guided by very imperfect lights, and some inequalities may 
consequently have ensued. These, however, can be but tempo- 
rary, and, as far as they may exist at all, will be i-edressed by a 
retrospective adjustment, as soon as a constitutional rule can be 
applied. 

The necessity of making the two foregoing j^rovisions one 
indivisible and irrevocable act, is apparent. Without the first 
quality, partial provision only might be made where complete 
provision is essential; nay, as some states might prefer and 
adopt one of the funds only, and the other states, the other fund 
only, it might happen that no provision at all would be made: 
without the second, a single state, out of the thirteen, might at 
any time involve the nation in bankruptcy, the mere practica- 



26 APPENDIX. 

bility of which would be a fatal bar to the establishment of 
national credit. Instead of enlarging on these topics, two 
observations are submitted to the justice and wisdom of the 
legislatures. First, the present creditors, or rather the domestic 
part of them, having either made their loans for a period which 
has expired, or havin'g become creditors, in the first instance, 
involuntarily, are entitled, on the clear principles of justice and 
good faith, to demand the principal of their credits, instead of 
accepting the annual interest. It is necessary, therefore, as the 
principal cannot be paid to them on demand, that the interest 
should be so effectually and satisfactorily secured, as to enable 
them, if they incline, to transfer their stock at its full value. 
Secondly, if the funds be so firmly constituted as to inspire a 
thorough and universal confidence, may it not be hoped that 
the capital of the domestic debt, which bears the high interest 
of six per cent, may be canceled by other loans obtained at a 
more moderate interest ? The saving by such an operation 
would be a clear one, and might be a considerable o4ie. 

Thus much for the interest of the national debt : for the dis- 
charge of the principal within the term limited, we rely on the 
natural increase of the revenue from commerce, on requisitions 
to be made from time to time for that purpose, as circumstances 
may dictate, and on the pi*ospect of vacant territory. If these 
resources should prove inadequate, it will be necessary, at the 
expiration of twenty-five years, to continue the funds now 
recommended, or to establish such others as may then be found 
more convenient. 

AVith a view to the resource last mentioned, as well as to 
obviate disagreeable controversies and confusions. Congress 
have included in their present recommendations a renewal of 
those of the 6th day of September, and of the 10th day of 
October, lYSO. In both these respects, a liberal and final 
accommodation of all interfering claims of vacant territory is 
an object which cannot be pressed with too much solicitude. 

The last object recommended is a constitutional change of the 
rule by which a partition of the common burdens is to be made. 
The expediency, and even necessity, of such a change, has been 
sufficiently enforced by the local injustice and discontents which 
have proceeded from valuations of the soil in every state where 
the experiment has been made. But how infinitely must these 
evils be increased, on a comparison of such valuations among 



APPENDIX. 27 

the states themselves ! On whatever side, indeed, this rule be 
surveyed, the execution of it must be attended with the most 
serious difficulties. If the valuations be referred to the author- 
ities of the several states, a general satisfaction is not to be 
hoped for. If they be executed by officers of the United States 
traversing the country for that purpose, besides the inequalities 
against Avhich this mode would be no security, the expense 
would be both enormous and obnoxious. If the mode taken in 
the act of the IVth day of February last, which was deemed, 
on the whole, least objectionable, be adhered to, still the insuffi- 
ciency of the data to the purpose to which they are to be applied 
must greatly impair, if not utterly destroy, all confidence in the 
accuracy of the result ; not to mention that, as far as the result 
can be at all a just one, it will be indebted, for that advantage, 
to the principle on which the rule proposed to be substituted is 
founded. Tliis rule, although not free fi-om objections, is liable 
to fewer than any other that could be devised. The only mate- 
rial difficulty which attended it in the deliberations of Congress, 
was to fix the pro2:)er difference betAveen the labor and industry 
of free inhabitants and of all other inhabitants. The ratio 
ultimately agreed on was the effect of mutual concessions ; and 
if it should be supposed not to correspond precisely with the 
fact, no doubt ought to be entertained that an equal spirit of 
accommodation among the several legislatures will jjrevail 
against little inequalities which may be calculated on one side 
or on the other. But notwithstanding the confidence of 
Congress as to the success of this proposition, it is their duty 
to recollect that the event may possibly disappoint them, and to 
request that measures may still be pursued for obtaining and 
transmitting the information called for in the act of the iVth of 
February last, which, in such event, will be essential. 

The plan thus communicated and explained by Congress must 
now receive its fate from their constituents. All the objects 
comprised in it are conceived to be of great importance to the 
happiness of this confederated republic — are necessary to render 
the fruits of the revolution a full reward for the blood, the 
toils, the cares, and the calamities which have purchased it. But 
the object, of which the necessity will be peculiarly felt, and 
which it is peculiarly the duty of Congress to inculcate, is the 
provision recommended for. the national debt. Although this 
debt is greater than could have been wished, it is still less, on the 



28 APPENDIX. 

whole, than could have been expected ; and, when referred to 
the cause in which it has been incurred, and compared with the 
burdens Avhich wars of ambition and of vain glory have entailed 
on other nations, ought to be borne not only with cheerfulness, 
but with pride. But the magnitude of the debt makes no part 
of the question. It is sufficient that the debt has been fairly 
contracted, and that justice and good faith demand that it 
should be fully dischai-ged. Congress had an ojDtion between 
diiFerent modes of discharging it. The same option is the only 
one that can exist with the states. The mode which has, after 
long and elaborate discussion, been preferred, is, we are per- 
suaded, the least objectionable of any that would have been 
equal to the purpose. Under this persuasion, we call upon the 
justice and plighted faith of the several states to give it its 
proper effect, to reflect on the consequences of rejecting it, and 
to remember that Congress will not be answerable for them. 

If other motives than that of justice could be requisite on 
this occasion, no nation could ever feel stronger ; for to whom 
are the debts to be paid ? 

To an ally, in the first place, who, to the exertion of his arms 
in support of our cause, has added the succors of his treas-ure ; 
who, to his important loans, has added liberal donations ; and 
whose loans themselves carry the impression of his magnanimity 
and friendship. 

To individuals in a foreign country, in the next place, who 
were the first to give so precious a token of their confidence in 
our justice, and of their fi-iendship for our cause, and who are 
members of a republic which was second in espousing our 
rank among nations. 

Another class of creditors is that illustrious and patriotic 
hand of fellow-citizens, whose blood and whose bravery have 
defended the liberties of their country ; who have patiently 
borne, among other distresses, the privation of their stipends, 
whilst the distresses of their country disabled it from bestowing 
them ; and who, even now, ask for no more than such a portion 
of their dues as will enable them to retire from the field of 
victory and glory into the bosom of peace and private citizen- 
ship, and for such effectual security, for the residue of their 
claims, as their country is now unquestionably able to provide. 

The remaining class of creditors is composed partly of such 
of our fellow-citizens as originally lent to the public the use of 



APPENDIX. 29 

their funds, or have since manifested most confidence in their 
country, by receiving transfers from the lenders ; and partly of 
those whose property has been either advanced or assumed for 
the public service. To discriminate the merits of these several 
descriptions of creditors, would be a task equally unnecessary 
and invidious. If the voice of humanity plead more loudly in 
favor of some than of others, the voice of policy, no less than 
of justice, pleads in favor of all. A wise nation will never 
permit those who relieve the wants of their country, or who 
rely most on its faith, its firmness, and its resources, when 
either of them is distrusted, to sufier by the event. 

Let it be remembered, finally, that it has ever been the pride 
and boast of America, that the rights for which she contended 
were the rights of human nature. By the blessings of the 
Author of these rights on the means exerted for their defense, 
they have prevailed against all opposition, and form the basis 
of thirteen independent states. No instance has heretofore 
occurred, nor can any instance be expected hereafter to occur, 
in which the unadulterated forms of republican government can 
pretend to so fair an opj^ortunity of justifying themselves by 
their fruits. In this view, the citizens of the United States are 
responsible for the greatest trust ever confided to a political 
society. If justice, good faith, honor, gratitude, and all the 
other qualities which ennoble the character of a nation, and 
fulfill the ends of government, be the fruits of our establish- 
ments, the cause of liberty will acquire a dignity and lustre 
which it has never yet enjoyed, and an example will be set 
which cannot but have the most favorable influence on the 
rights of mankind. If, on the other side, our governments 
should be unfortunately blotted with the reverse of these 
cardinal and essential virtues, the great cause which we have 
engaged to vindicate will be dishonored and betrayed, the last 
and fairest experiment in favor of the rights of human nature will 
be turned against them, and their patrons and friends exposed 
to be insulted and silenced by the votaries of tyranny and 
usurpation. 

By order of the United States in Congress assembled. 



54 



80 APPEKDIX. 

NO. 7. 

On tlie 30th April, 1'784, Congress agreed to the following 
further recommendations : 

" The trust reposed in Congress renders it their duty to be 
attentive to the conduct of foreign nations, and to prevent or 
restrain, as far as may be, all such proceedings as might prove 
injurious to the United States. The situation of commerce at 
this time claims the attention of the several States, and few 
objects of greater importance can present themselves to their 
notice. The fortune of every citizen is interested in the success 
thereof; for it is the constant source of wealth and incentive to 
industry ; and the value of our jDroduce and our land must ever 
rise or fall in proportion to the prosj)erous or adverse state of 
trade. 

" Already has Great Britain adopted regulations destructive 
of our commerce with her West India Islands. There was, rea- 
son to expect that measures so unequal, and so little calciilated 
to promote mercantile intercourse, w^ould not be persevered in 
by an enlightened nation. But these measures are growing 
into a system. It would be the duty of Congress, as it is their 
wish, to meet the attempts of Great Britain with similar restric- 
tions on her commerce; but their powers on this head are not 
explicit, and the propositions made by the legislatures of the 
several states render it necessary to take the general sense of 
the Union on this subject. 

" Unless the United States in Congress assembled shall be 
vested with powers competent to the j^rotection of commerce, 
they can never command reciprocal advantages in trade ; and 
without these, our foreign commerce must decline, and eventu- 
ally be annihilated. Hence it is necessary that the states should 
be explicit, and fix on some eifectual mode by which foreign 
commerce not founded on principles of equality may be 
restrained. 

" That the United States may be enabled to secure such 
terms, they have 

" Mesolved, That it be, and it hereby is, recommended to the 
legislatures of the several States, to vest the United States in 
Congress assembled, for the term of fifteen years, with power 
to prohibit any goods, wares, or merchandise, from being 
imported into, or exported from, any of the states, in vessels 



APPENDIX. 31 

belonging to, oi* navigated by, the subjects of any power -witli 
whom states shall not have formed treaties of commerce. 

" Hesolved, That it be, and it hereby is, recommended to the 
legislatures of the several states, to vest the United States in 
Congress assembled, for the term of fifteen years, with the 
power of prohibiting the subjects of any foreign state, kingdom, 
or empire, unless authorized by treaty, from importing into the 
United States any goods, wares, or merchandise, which are not 
the produce or manufacture of the dominions of the sovereign 
whose subjects they are. 

^^ Provided, That to all acts of the United States in Congress 
assembled, in pursuance of the above powers, the assent of nine 
states shall be necessary." 

The result of all this was that the several States did not 
agree upon any plan in accordance with these several recom- 
mendations, and it became ajsparent that nothing could be 
accomplished in this manner. 

On the 21st day of January, 1786, in the House of Delegates 
in Virginia, it was 

Resolved,, That Edmund Randolph, James Madison, Jun., 
Walter Jones, St. George Tucker, Meriwether Smith, David 
Ross, William Ronald and George Mason, Esquires, be appointed 
commissioners, who, or any five of whom, shall meet such com- 
missioners as may be appointed by the other States in the 
Union, at a time and place to be agreed on, to take into consid- 
eration the trade of the United States ; to examine the relative 
situation and trade of the said States ; to consider how far a uni- 
form system in their commercial regulations may be necessary 
to their common interest and their permament harmony ; and to 
report to the several States such an act relative to this great 
object as, when unanimously ratified by them, will enable the 
United States in Congress assembled effectually to provide for 
the same that the said commissioners shall immediately transmit 
to the several States copies of the preceding resolution, with a 
circular letter requesting their concurrence therein, and propos- 
ing a time and place for the meeting aforesaid. 

Test, JOHN BECKLEY, C. H. D. 

1786, January 21. 

Agreed to by the Senate. H. BROOKE, C ;S^. 

By his excellency, Patrick Henry, Esquire, Governor of the 
Commonwealth of Virginia, it is hereby certified that John 



82 APPENDIX. 

Beclcley, the person subscribing the above resolve, is Clerk of 
the House of Delegates, and that due fjxith and credit is, and 
ought to be, paid to all things done by him by virtue of his 
office. 

Given under my hand, as Governor, and under the Seal of 
[l. s.] the Commonwealth, at Richmond, the 6th day of July, 
1786. P. HENRY. 

■ISTO. 8. 

" To the Honorable the Legislatures of Virginia, Delaware, 
Pennsylvania, New Jersey and New York, the commissioners 
from the said states respectively, assembled at Annapolis, 
humbly beg leave to report, — 

" That, pursuant to their several appointments, they met at 
Annapolis, in the state of Maryland, on the 11th day of Sep- 
tember, instant ; and having proceeded to a communication of 
their powers, they found that the states of New York, Pennsyl- 
vania and Virginia, had, in substance, and nearly in the same 
terms, authorized their respective commissioners ' to meet such 
commissioners as were or might be appointed by the other 
states in the Union, at such time and place as should be agreed 
upon by the said commissioners, to take into consideration the 
trade and commerce of the United States; to consider how far 
a uniform system in their commercial intercourse and regulations 
might be necessary to their common intei'est and permanent 
harmony ; and to report to the several states such an act relative 
to this great object as, when unanimously ratified by them, 
would enable the United States in Congress assembled, efiectu- 
ally to provide for the same.' 

" That the state of Delaware had given similar powers to their 
commissioners, with this difference only, that the act to be 
framed in virtue of these powers, is required to be reported ' to 
the United States in Congress assembled, to be agreed to by 
them, and confirmed by the legislatures of every state.' 

" That the state of New Jersey had enlarged the object of 
their appointment, empoAvering their commissioners 'to con- 
sider how far a uniform system in their commercial regulations 
and other important matters might be necessary to the common 
interest and permanent harmony of the several states ;' and to 
report such an act on the subject as, when ratified by them, 
* would enable the United States in Congress assembled, effect- 
ually to provide for the exigencies of the Union.' 



APPENDIX. 33 

*' That appointments of commissioners have also been made by 
the states of New Hampshire, Massachusetts, Rhode Island and 
North Carolina, none of whom, however, have attended ; but 
that no information has been received by your commissioners, 
of any appointment having been made by the states of Connec- 
ticut, Maryland, South Carolina or Georgia. 

*' That the express terms of the powers to your commissioners, 
supposing a deputation from all the states, and having for 
object the trade and commerce of the United States, your com- 
missioners did not conceive it advisable to proceed on the 
business of their mission u.nder the circumstances of so partial 
and defective a repi-esentation, 

" Deeply impressed, however, with the magnitude and impor- 
tance of the object confided to them on this occasion, your 
commissioners cannot forbear to indulge an expression of their 
earnest and unanimous Avish, that speedy measures may be 
taken to eflect a general meeting of the states, in a future con- 
vention, for the same and such other purposes as the situation 
of public affairs may be found to require. 

" If, in expressing this wish, or in intimating any other senti- 
ment, your commissioners should seem to exceed the strict 
bounds of their appohitment, they entertain a full confidence 
that a conduct dictated by an anxiety for the welfare of the 
United States will not fail to receive an indulgent construction. 

" In this persuasion your commissioners submit an opinion, 
that the idea of extending the powers of their deputies to other 
objects than those of commerce, which has been adopted by the 
state of New Jersey, was an improvement on the original j^lan, 
and will deserve to be incorporated into that of a future conven- 
tion. They are the more naturally led to this conclusion, as, in 
the course of their reflections on the subject, they have been 
induced to think that the power of regulating trade is of such 
comprehensive extent, and will enter so far into the general 
system of the federal government, that to give it efficacy, and to 
obviate questions and doubts concerning its precise nature and 
limits, may require a correspondent adjustment of other parts 
of the federal system. 

" That there are important defects in the sytem of the federal 
government, is acknowledged by the acts of all those states 
which have concurred in the present meeting ; that the defects, 
upon a closer examination, may be found gi'eater and more 



34 APPENDIX. 

numerous than even these acts imply, is at least so far probable, 
from the embarrassments which characterize the present state of 
our national affairs, foreign and domestic, as maiy reasonably be 
supposed to merit a deliberate and candid discussion, in some 
mode which will unite the sentiments and councils of all the 
states. In the choice of the mode, your commissioners are of 
opinion that a convention of deputies from the different states, 
for the sj)ecial and sole purpose of entering into this investi- 
gation, and digesting a plan for supplying such defects as may 
be discovered to exist, will be entitled to a preference, from 
considerations which will occur without being j)articularized. 

" Your commissioners decline an enumeration of those national 
circumstances on which their opinion respecting the propriety 
of a future convention, with more enlarged powers, is founded ; 
as it would be a useless intrusion of facts and observations, most 
of which have been frequently the subject of public discussion, 
and none of which can have escaped the penetration of those to 
whom they would in this instance be addressed. They are, 
however, of a nature so serious, as, in the view of your com- 
missioners, to render the situation of the United States delicate 
and critical, calling for an exertion of the united virtue and 
wisdom of all the members of the confederacy. 

" Under this impression, your commissioners, with the most 
respectful deference, beg leave to suggest their unanimous con- 
viction, that it may essentially tend to advance the interests of 
the Union, if the states, by whom they have been resj^ectively 
delegated, would themselves concur, and use their endeavors to 
procure the concurrence of the other states, in the appointment 
of commissioners, to meet at Philadelphia on the second Monday 
in May next, to take into consideration the situation of the 
United States, to devise such further pi-ovisions as shall appear 
to them necessary to render the constitution of the federal 
government adequate to the exigencies of the Union ; and to 
report such an act for that purpose to the United States in Con- 
gress assembled, as, when agreed to by them, and afterwards 
confirmed by the legislatures of every state, will effectually pro- 
vide for the same. 

" Though your commissioners could not with propriety 
address these observations and sentiments to any but the states 
they have the honor to represent, they have nevertheless con- 
cluded, from motives of respect, to transmit copies of this report 



APPENDIX. 85 

to the United States in Congress assembled, and to the execu- 
tive of the other states. 

" By order of the Commissioners. 
"Dated at Annapolis, September 14, 1786. 

Hesolved, That the chairman sign the aforegoing report in 
behalf of the commissioners. Then adjourned without day. 

A^eiu York. Delaivare. 

Egbert Benson, George Read, 

Alexander Hamilton. John Dickinson, 

New Jersey. Eichard Bassett. 
Abra. Clark, Virginia. 

Wm. Cii. Houston, Edmund Randolph, 

James Schureman. James Madison, Jan., 

Pennsylvania. St. George Tucker. 
Tench Coxe. 

NO. 9. 

These resolutions were submitted to Congx-ess on the '21st of 
February, 1787, and the result was that Congress agreed to the 
following preamble and resolutions : 

" Whereas there is provision, in the Articles of Confederation 
and Perpetual Union, for making alterations therein, by the 
assent of a Congress of the United States, and of the legisla- 
tures of the several states, and whereas exiDcrience hath evinced 
that there are defects in the present Confederation ; as a mean to 
remedy which, several of the states, and particularly the state 
of Kew York, by express instructions to their delegates in Con- 
gress, have suggested a convention for the purposes expi-essed in 
the following resolution ; and such convention aj^pearing to be 
the most probable mean of establishing in these States a firm 
national government, — 

" Resolved, That, in the opinion of Congress, it is expedient 
that, on the second Monday in May next, a convention of dele- 
gates, who shall have been appointed by the several states, be 
held at Philadelphia, for the sole and express purpose of revising 
the Articles of Confederation, and reporting to Congress, and 
the several legislatures, such alterations and provisions therein 
as shall, when agreed to in Congress, and confirmed by the 
states, render the federal Constitution adequate to the exigen- 
cies of government and the preservation of the Union." 

The states severally, in comi^liance with these recommenda- 
tions, appointed the following as delegates to meet in convention 
on the second Monday of May, 1787. 



36 APPENDIX. 

LIST OF THE MEMBERS OF THE FEDERAL CONVEN- 
TION, WHICH FORMED THE CONSTITUTION OF 
THE UNITED STATES. 

From Attended 

1787, 

New Hampshire, 1. John Langdon, July 23. 

John Pickering, 

2. Nicholas Gilman, , July 23. 

Benjamin West, ' 

Massachusetts, Francis Dana, 

Elbridge Gerry, May 29. 

3. Nathaniel Gorham, May 28. 

4. Eufus King, May 25. 

Caleb Strong, May 28. 

Ehode Island, [No appointment] 

Connecticut, 5. Wra. Sam. Johnson, June 2. 

6. Roger Sherman, May 30. 

Oliver Ellsworth, May 29. 

New Tore, Robert Yates, May 25. 

7. Alexander Hamilton, May 25. 

John Lansing, June 2. 

New Jersey, 8. William Livingston, June 5. 

9. David Brearly, May 25. 

William C. Houston, May 25. 

10. William Patterson, -May 25. 

John Nelson, 
Abraham ClarTc, 

IL Jonathan Dayton, June 21. 

Pennsylvania, 12. Benjamin Franklin, May 28. 

13. Thomas Mifflin, May 28. 

14. Robert Morris, May 25. 

15. George Clymer, May 28. 

16. Thomas Fitzsimons, May 25. 

17. Jared Ingersoll, May 28. 

18. James Wilson, May 25. 

19. Gouverneur Morris, May 25. 

Delaware, ......... 20. George Read, May 25. 

21. Gunning Bedford, Jun., May 28. 

22. John Dickinson, May 28. 

23. Richard Basset, May 25. 

24. Jacob Broom, May 25. 

Maryland, 25. James M'Henry, May 29. 

26. Daniel of St. Thomas Jenifer, June 2. 

27. Daniel Carroll, July 9. 

John Francis Mercer, August 6. 

Luther Martin, June 9. 

Virginia, 28. George Washington, May 25. 

Patrick Henry, (declined.) 

Edmund Randolph, May 25. 

29. John Blair, May 25. 

30. "James Madison, Jun., May 25. 

George Mason, May 25. 

George Wythe, May 25. 

J. M'Clurg, [room of P. Henry.] . . May 25. 

North Carolina, .... Richard Caswell, (resigned.) 

Alexander Martin, May 25. 



APPENDIX. 37 

North Carolina, .... William E. Davie, May 25. 

31. Wm. Blount, [room of R. Caswell.] June 20, 
Willie Jones, (declined.) 

32. Richard D. Speight, May 25. 

33. H. Williamson, [room of W.Jones.J May 25. 
South Carolina, 34. John Rutledge, May 25. 

35. Charles C. Pinckney, May 25. 

36. Charles Pinckney, May 25. 

37. Pierce Butler, May 25. 

Georgia, 38. William Few, May 25. 

39. Abraham Baldwin, June 11. 

William Pierce, May 31. 

George Walton, 

William Houstoun, June 7. 

Nathaniel Pendleton, 

Those with numbers before their names signed the Constitution, 39 

Those in Italicn never attended, 10 

Members who attended, but did not sign the Constitution, 16 

65 
NO. 10. 

The following are the credentials of the members of the 
Federal Convention : 

CREDENTIALS OF MEMBERS OF THE FEDERAL 
CONVENTION. 

STATE OF NEW HAMPSHIRE. 
In the Year of our Lord 1787. 
An Act for appointing Deputies from this State to the Convention proposed 
to beholden in the city of Philadelphia, in May, 17S7, for the Purpose of 
revising the federal Constitution. 

Whereas, in the formation of the federal compact, which 
frames the bond of union of the American states, it was not pos- 
sible, in the infant state of our republic, to devise a system 
which, in the course of time and experience, would not manifest 
imperfections that it would be necessary to reform: 

And whereas, the limited powers, which, by the Articles of 
Confederation, are vested in the Congress of the United States, 
have been found far inadequate to the enlarged purposes which 
they were intended to produce ; and whereas Congress hath, by 
repeated and most urgent representations, endeavored to awaken 
this, and other states of the Union, to a sense of the truly critical 
and alarming situation in which they may inevitably be involved, 
unless timely measures be taken to enlarge the j^owers of Con- 
gress, that they may be thereby enabled to avert the dangers 
which threaten our existence as a free and independent people ; and 
55 



88 APPENDIX. 

whereas this state hath been ever desirous to act upon the liberal 
system of the general good of the United States, without circum- 
scribing its views to the narrow and selfish objects of partial 
convenience ; and has been at all times ready to make every 
concession, to the safety and happiness of the whole, which 
justice and sound policy could vindicate ; — 

Be it therefore enacted, by the Senate and Souse of Represen- 
tatives, in General Court convened. That John Langdon, John 
Pickering, Nicholas Oilman and Benjamin West, Esqrs., be and 
hereby are, appointed commissioners : they or any two of them, 
are hereby authorized and empowered, as deputies from this 
state, to meet at Philadelphia said Convention, or any other 
j)lace to which the Convention may be adjourned, for the pur- 
poses aforesaid, there to confer with such deputies as are, or 
may be, appointed by the other states for similar purposes, and 
with them to discuss and decide upon the most effectual means 
to remedy the defects of our federal Union, and to procure and 
secure the enlarged purposes which it was intended to effect, 
and to report such an act to the United States in Congress, as, 
when agreed to by them, and duly confirmed by the several 
states, will effectually provide for the same. 

State of New Hampshire. — In the House of Repre- 
sentatives, June 27,- 1787. The following bill having been 
read a third time, — voted that it pass to be enacted. Sent up 

for concurrence. 

JOHN SPARHAWK, SpeaTcer. 

In Senate, the same day. This bill having been read a third 
time, — voted that the same be enacted. 

JOHN SULLIVAN, President. 
Copy examined, per Joseph Pearson, Secretary. [l. s.] 



COMMONWEALTH OF MASSACHUSETTS. 
By his excellency, James Bowdoin, Esq., Governor of the Com- 
[l. s.] monwealth of Massachusetts. 

To the Hon. Francis Dana, Elbridge Gerry, Nathaniel Gor- 
hani, JRufus King and Caleb Strong, Esqrs., Greeting : 

Whereas Congress did, on the 21st day of Feburary, A. D. 
1787, resolve, " That, in the opinion of Congress, it is expedient 
that, on the second Monday in May next, a convention of dele- 
gates, who shall have been appointed by the several states, be 



APPENDIX. 89 

held at Philadelphia, foi* the sole and express jDurpose of revising 
the Articles of Confederation, and reporting to Congress and the 
several legislatures such alterations and provisions therein as 
shall, when agreed to in Congress, and confirmed by the states, 
render the federal constitution adequate to the exigencies of 
government and the preservation of the Union ;" And whereas 
the General Court have constituted and appointed you their 
delegates, to attend and repi'esent this commonwealth in the 
said proposed Convention, and have by a resolution of theirs of 
the 10th of March last, requested me to commission you for 
that purpose ; — 

iVow, therefore^ Knoxo ye. That, in pursuance of the resolu- 
tions aforesaid I do, by these presents, commission you, the 
said Francis Dana, Elbridge Gerry, Nathaniel Gorham, Rufus 
King, and Caleb Strong, Esqrs., or any three of you, to meet 
such delegates as may be appointed by the other, or any of the 
other States in the Union, to meet in Convention at Philadel- 
phia, at the time and for the purposes aforesaid. 

In testimony whereof, I have caused the jDublic seal of the 
commonwealth aforesaid to be hereunto affixed. 

Given at the Council Chamber, in Boston the ninth day of 
April, A. D. 1787, and in the 11th year of the independ- 
ence of the United States of America. 

JAMES BOWDOIN. 

By his excellency's command. — John Aveky, Jun,, Secretary. 



STATE OF CONNECTICUT. 

At a General Assembly of the State of Connecticut, in America, 
[l. s.] holden at Hartford, on the second Thursday of May, 
A. D. 1787. 

An Act for appointing Delegates to meet in Convention of the 

States, to he held in Philadelphia on the second Monday of 

May instant. 

Whereas, the Congress of the United States, by their act of 
the 21st February, 1787, have recommended that, on the sec- 
ond Monday of May inst., a Convention of delegates, who shall 
have been appointed by the several States, to be held at Phila- 
delphia, for the sole and express purpose of revising the Arti- 
cles of the Confederation ; — 

£e it enacted by the governor, council, and representatives^ 
in General Court assembled, and by the authority of the 



40 APPENDIX. 

same, That the Hon. William Samuel Johnson, Eoger Sherman, 
and Oliver Ellsworth, Esqrs., be, and they hereby are, appoint- 
ed delegates to attend the said Convention, and are requested 
to proceed to the city of Philadelphia, for that purpose, without 
delay; and the said " delegates, and, in case of sickness or acci- 
dent, such one or more of them as shall attend the said Conven- 
tion, is and are hereby authorized and empowered to represent 
this State therein, and to confer with such delegates appointed 
by the several States, for the purposes mentioned in the said 
act of Congress, that may be present and duly empowered to 
sit in said Convention, and to discuss upon such alterations and 
provisions, agreeably to the general principles of republican 
government, as they shall think proper to render the Federal 
Constitution adequate to the exigencies of government and the 
preservation of the Union ; and they are further directed, pursu- 
ant to the said act of Congress, to report such alterations and 
provisions as may be agreed to by a majority of the United 
States represented in Convention, to the Congress of the Uni- 
ted States, and to the General Assembly of this State. 
A true copy of record. Examined by 

GEORGE WILLYS, Secretary, 



STATE OF NEW YORK. 

By his excellency, George Clinton, Governor of the State of 
[i,. s,] New York, general and commander-in-chief of all the 

militia, aijd admiral of the navy of the same. 
To all to lohom these 2^resents shall come : 

It is by these presents certified, that John M'Kesson, who 
has subscribed the annexed copies of resolutions, is clerk of the 
Assembly of this State. 

In testimony whereof, I have caused the jsrivy seal of the 
said State to be hereunto affixed, this 9th day of May, in the 
11th year of the independence of the said State. 

GEORGE CLINTON. 

State op New York. — In Assembly, ^5?'i«ar?/ 28, 1787. — 
A copy of a resolution of the honorable the Senate, delivered 
by Mr. Williams, was read, and is in the words following, viz. : 

Resolved, If the honorable the Assembly concur therein, 
that three delegates be appointed on the part of this State, 
to meet such delegates as may be appointed on the part of the 



APPENDIX. 41 

other States, respectively, on the second Monday in May next, 
at Philadelphia, for the sole and express purpose of revising the 
Articles of Confederation, and reporting to Congress, and to the 
several legislatures, such alterations and provisions thei-ein as 
shall, when agreed to in Congress, and confirmed by the several 
States, render the Federal Constitution adequate to the exigen- 
cies of government and the preservation of the Union ; and that 
in case of such concurrence, the two houses of the legislature 
Avill, on Tuesday "next, proceed to nominate and appoint the 
said delegates, in like manner as is directed by the Constitution 
of this State for nominating and appointing delegates to Con- 
gress. 

-Resolved, That this house do concur with the honorable the 
Senate in the said resolution. 

Ijf Assembly, Jfarch 6, l7^1.—Jlesolved, That the Hon. 
Robert Yates, Esq., Alexander Hamilton, and John Lansing, 
Jun., Esqrs., be and they ai'e hereby nominated by this house 
delegates on the part of this State, to meet such delegates as 
may be appointed on the part of the other States, respectively, 
on the second Monday in May next, at Philadelphia, pursuant 
to concurrent resolutions of both houses of the legislature, on 
the 28th ultimo. 

Orde7-ed, That Mr. N. Smith deliver a copy of the last pre- 
ceding resolution to the honorable the Senate. 

A copy of a resolution of the honorable the Senate was deliv- 
ered by Mr. Vandei'bilt, that the Senate will immediately meet 
this house in the Assembly Chamber, to compare the list of 
persons nominated by the Senate and Assembly, respectively, 
as delegates, pursuant to the resolutions before mentioned. 

The honorable the Senate accordingly attended in the Assem- 
bly Chamber, to compare the lists of persons nominated for 
delegates, as above mentioned. 

The list of persons nominated by the honorable the Senate 
were the Hon. Robert Yates, John Lansing, Jun., and Alexan- 
der Hamilton, Esqrs. ; and on comparing the lists of the per- 
sons nominated by the Senate and Assembly respectively, it 
appeared that the same persons were nominated in both lists ; 
thereupon, Resolved, that the Hon. Robert Yates, John Lan- 
sing, Jun., and Alexander Hamilton, Esqrs., be, and they are 
hereby declared duly nominated and appointed delegates, on 
the part of this State, to meet such delegates as may be appointed 



42 APPENDIX. 

on the part of the other States, respectively, on the second 
Monday in May next, at Philadelphia, for the sole and express 
purpose of revising the Articles of Confederation, and reporting 
to Congress, and to the several legislatures, such alterations and 
provisions therein as shall, when agreed to in Congress, 
and confirmed by the several States, render the Federal Con- 
stitution adequate to the exigencies of government and the 
preservation of the Union. 

True extracts from the journals of the Assembly. 

JOHN M'KESSON, Clerh. 



STATE OF NEW JERSEY. 

To the Hon. David Brearly^ William Churchill Houston, Wil- 
liam Patterson, and John Neilso7i, Esqrs., Greeting: 

The Council and Assembly, reposing especial trust and con- 
fidence in your integrity, prudence and ability, have, at a joint 
meeting, appointed you, the said David Brearly, William 
Churchill Houston, William Patterson, and John Neilson, 
Esqrs., or any three of you, commissioners, to meet such com- 
missioners as have been, or may' be, appointed by the other 
States in the Union, at the city of Philadelphia, in the common- 
wealth of Pennsylvania, on the second Monday in May next, 
for the purpose of taking into consideration the state of the 
Union as to trade and other important objects, and of devising 
Buch other provisions as shall appear to be necessary to render 
the constitution of the federal government adequate to the 
exigencies thereof 

In testimony whereof, the great seal of the State is hereunto 
affixed. Witness, William Livingston, Esq., governor, 
captain-general, and commander-in-chief in and over the 
State of New Jersey, and territories thereunto belonging 
chancellor and ordinary in the same, at Trenton, the 23d 
day of Novembei*, in the year of our Lord, 1786, and of 
our sovereignty and independence the eleventh. 

WILLIAM LIVINGSTON. 

By Ms excellency's command. — Bowes Reed, Secretary. 



APPENDIX. 43 

STATE OF NEW JERSEY. 

To his excellency, William Livingston, and the Hon. Abraham 
[l. s.] Clark, Esqrs, Greeting : 

The Council and Assembly, reposing especial trust and con- 
fidence in your integrity, prudence, and ability, have at a joint 
meeting, appointed yon, the said William Livingston and 
Abraham Clark, Esqrs., in conjunction Avith the Hon. David 
Brearly, William Churchill Houston, and William Patter- 
son, Esqrs., or any three of you, commissioners, to meet 
such commissioners as have been appointed by the other States 
in the Union, at the city of Philadelphia, in the commonAvealth 
of Pennsylvania, on the second Monday in this present month, 
fof the purpose of taking into consideration the state of the 
Union, as to trade and other important objects, and of devising 
sitch other provisions as shall appear to be necessary to render 
the constitution of the federal government adequate to the 
exigencies thereof. 
In testimony whereof, the great seal of the State is hereunto 
affixed. Witness, William Livingston, Esq., governor, 
captain-general, and commander-in-chief, in and over the 
State of New Jersej^ and territories thereunto belonging, 
chancellor and ordinary in the same, at Burlington, the 
18th day of May, in the year of our Lord 1787, and of our 
sovereignty, and independence the eleventh. 

WIL. LIVINGSTON. 
By his excellency's command.— Bowes Reed, Secretary. 

STATE OF NEW JERSEY. 
To the Hon. J. Dayton, Esq. 

The Council and Assembly, reposing especial trust and confi- 
dence in your integrity, prudence and ability, have, at a joint 
meeting, appointed you, the said Jonathan Dayton, Esq., in 
conjunction Avith his excellency, William Livingston, the Hon. 
David Brearly, William Churchill Houston, William Patterson 
and Abraham Clark, Esqrs., or any three of you, commissioners, 
to meet such commissioners as have been appointed by the other 
states in the Union, at the city of Philadelphia, in the common- 
wealth of Pennsylvania, for the purpose of taking into consider- 
ation the state of the Union as to trade and other important 
objects, and of devising such other provisions as shall appear to 



44 APPENDIX. 

be necessary to render the constitution of the federal govern- 
ment adequate to the exigencies thereof. 

In testimony whereof the great seal of the state is hereunto 
affixed. Witness, Robert Lettice Hooper, Esq., vice-pi'esi- 
dent, captain-general and comraander-in chief in and over 
the state of New Jersey, and territories thereunto belong- 
ing, chancellor and ordinary in the same, at Burlington, the 
fifth day of June, in the year of our Lord 1*787, and of our 
sovereignty and independence the eleventh. 

ROBERT L. HOOPER. 
By his honor's command.— Bowes Reed, Secretary. 



COMMONWEALTH OF PENNSYLVANIA. 

An Act appointing Deputies to the Convention intended to he 

held in the City of Philadelphia^ for the purpose of revising 

the Federal Constitution. 

Section 1. Whei'eas the General Assembly of this common- 
wealth, taking into their serious consideration tlie rej)resentations 
heretofore made to the legislatures of the several states in the 
Union, by the United States in Congress assembled, and also 
weighing the difficulties under w^hich the confederated states 
now labor, are fully convinced of the necessity of revising the 
Federal Constitution, for the j)urpose of making such alterations 
and amendments as the exigencies of our public affairs require: 
And whereas the legislature of the state of Virginia have already 
passed an act of that commonwealth, empowering certain com- 
missioners to meet at the city of Philidelphia, in May next, a 
convention of commissioners or deputies from the different 
states ; and the legislature of this state are fully sensible of the 
important advantages which may be derived to the United 
States, and every of them, from co-operation with the common- 
mealth of Virginia and the other states to the Confederation, in 
the said design. 

Sec. 2. Be it enacted, and it is hereby enacted, hy the repre- 
sentatives of the freemen of the commonwealth of Pennsylvania , 
in General Assembly met, and hy the authority of the same. 
That Thomas Mifflin, Robert Morris, George Clymer, Jared 
Ingersoll, Thomas Fitzsimons, James Wilson and Gouverneur 
Moi'ris, Esqrs.,"are hereby appointed deputies from this state, 
to meet in the Convention of the deputies of the respective states 



APPENDIX. 45 

of North America, to be held at the city of Philadelphia, on the 
2d day in the month of May next ; and the said Thomas Mifflin, 
Robert Morris, George Clymer, Jared Ingersoll, Thomas Fitz- 
simons, James Wilson and Gouverneur Morris, Esqrs., or any 
four of them, are hereby constituted and appointed deputies 
from tliis state, with powers to meet such deputies as may be 
appointed and authorized by the other states, to assemble in the 
said Convention, at the city aforesaid, and join with them in 
devising, deliberating on, and discussing, all such alterations 
and further provisions as may be necessary to render the Fede- 
ral Constitution fully adequate to the exigencies of the Union, 
and in reporting such act or acts, for that purpose, to the United 
States in Congress assembled, as, when agreed to by them, and 
duly confirmed by the several states, will effectually provide 
for the same. 

Sec. 3. And be it further enacted hy the authority aforesaid^ 
That, in case any of the said deputies hereby nominated shall 
happen to die, or to resign his or their said appointment or 
appointments, the supreme executive council shall be, and 
hereby are, empowered and required to nominate and appoint 
other person or persons, in lieu of him or them so deceased, or 
who has or have so resigned, which person or persons, from and 
after such nomination and appointment, shall be and hereby are, 
declared to be vested with the same powers respecrively as any 
of the deputies nominated and appointed by this act is vested 
with by the same : Provided always, that the council are not 
hereby authorized, nor shall they make any such nomination or 
appointment, except in vacation and during the recess of the 
General Assembly of this state. Signed by order of the house, 

[^- S-] THOMAS MIFFLIN", Speaker. 

Enacted into a law at Philadelphia, on Saturday, December 
30, in the year of our Lord 1786. 

PETER ZACHARY LLOYD, 

ClerJc of the General Assembly. 

I, MatthcAV Irwine, Esq., master of the rolls for the state of 
Pennsylvania, do certify the preceding writing to be a true copy 
(or exemplification) of a certain act of Assembly lodged in my 
office. 

In witness whereof, I have hereunto set my hand and seal of 

[l, s.] office, the 15th May, A. D. 1787. 

MATTHEW IRWINE, M. B. 
56 



46 APPENDIX. 

A Supplement to the Act entitled ^^ An Act ap)pointing Deputies 
to the Convention intended to he held in the City of Philadel- 
phia, for the purpose of revising the Federal Constitution. 
Sectiojt 1. Whereas, by the act to which this act is a supple- 
ment, certain persons were appointed as deputies from this state 
to sit in the said Convention ; And whereas it is the desire of 
the General Assembly, that his excellency, Benjamin Franklin, 
Esq., president of this state, should also sit in the said Conven- 
tion, as deputy from this state ; therefore, 

Sec. 2. JBe it enacted, and it is hereby enacted, hy the repre- 
sentatives of thefreetnen of the commonwealth of Pennsylvania, 
in General Assembly met, and by the authority of the same, 
That his excellency, Benjamin Franklin, Esq., be, and he is 
hereby, appointed and authorized to sit in the said Convention 
as a deputy from this state, in addition to the persons hereto- 
fore appointed ; and that he be, and he hereby is, invested Avith 
like powers and authorities as are invested in the said deputies, 
or any of them. Signed by order of the House, 

THOMAS MIFFLIN", Spealcer. 

Enacted into a law at Philadelphia, on Wednesday the 28th 
day of March, in the year of our Lord 1787. 

PETER ZACHARY LLOYD, 

Clerk of the Genercd Assembly. 
I, Matthew Irwine, Esq., master of the rolls for the state of 
Pennsylvania, do certify the above to be a true copy (or exem- 
plification) of a supplement to a certain act of Assembly, which 
supplement is lodged in my office. 

In witness whereof, I have hereunto set my hand and seal of 
[l. s.] office, the 15th May, A. D. 1787. . 

MATTHEW IRWINE, M. B. 



DELAWARE STATE. 

His excellency, Thomas Collins, Esq., president, captain-general, 
and commander-in-chief of the Delaware state. 

To all to whoin these presents come. Greeting: 

Know ye, that, among the laws of the said state, passed by the 

r -1 General Assembly of the same, on the 3d day of Feb- 
ruary, in the year of our Lord 1787, it is thus enrolled : 
" In the eleventh year of the independence of the Delaware 

state." 



APPENDIX. 47 

" An Act appointing Deputies from this State to the Conven- 
tion proposed to be held in the City of Philadelphia, for the 
Piopose of revising the Federal Constitution:^ 
Whereas, the General Assembly of this state are fully con- 
vinced of the necessity of revising the Federal Constitution, and 
adding thereto such further provisions as may render the same 
more "adequate to the exigencies of the Union ; And whereas 
the legislature of Virginia have already passed an act of that 
commonwealth, appointing and authorizing certain commission- 
ers to meet at the city of Philadelphia, in May next, a Conven- 
tion of commissioners or deputies from the different states ; and 
this state being willing and desirous of co-operating with the 
commonwealth of Virginia, and the other states in the Confede- 
ration, in so useful a design : 

Be it therefore enacted by the General Assembly of Dela- 
ware, that George Read, Gunning Bedford, John Dickinson, 
Richard Bassett, and Jacob Broom, Esqrs., are hereby appointed 
deputies from this State to meet in the Convention of the 
deputies of other States to be held at the city of Philadelphia, 
on the 2d day of May next ; and the said George Read, Gun- 
ning Bedford, John Dickinson, Richard Basset, and George 
Broom, Esqrs., or any three of them, are hereby constituted 
and appointed deputies from this State, with powers to meet 
such deputies as may be appointed and authorized by the other 
States to assemble in the said Convention at the city aforesaid, 
and to join Avith them in devising, deliberating on, and discuss- 
ing, such alterations and further provisions as may be necesary 
to render the Federal Constitution adequate to the exigencies 
of the Union ; and in reporting such act or acts, for that pur- 
pose, to the United States in Congress assembled, as, when 
agreed to by them, and duly confirmed by the several States, 
may effectually provide for the same. So always and provided, 
that such alterations or further provisions, or any of them, do 
not extend to that part of the fifth article of the Confederation 
of the said States, finally ratified on the 1st day of March, in the 
year 1781, which declares that, "In determining questions in 
the United States in Congress assembled, each State shall have 
one vote." 

And be it enacted. That in case any of the said deputies 
hereby nominated shall happen to die, or resign his or their 
appointment, the president or commander-in-chief, with the 



48 APPENDIX. 

advice of the pvivy council, in the recess of the General Assem- 
bly, is hereby authorized to supply such vacancies. 

Signed by the order of the House and Assembly, 

JOHN COOK, SpeaJcer. 

Signed by the order of the Council, 

GEORGE CRAGHED, ^joga^er. 

Passed at Dover, February 3, 1787. 

All and singular which j)remises, by the tenor of these pres- 
ents, I have caused to be exemplified. In testimony whereof, I 
have hereunto subscribed my name, and caused the great seal 
of the said State to be aiixed to these presents, at New Castle, 
the 2d day of April, in the year of our Lord 1787, and in the 
11th year of the independence of the United States of America. 

THOMAS COLLINS. 
Attest, James Booth, Secretary. 



STATE OF MARYLAND. 

An Act for the Aiyijointment of, and conferring Powers on^ 
Deputies from this State to the Federal Convention. 
Be it enacted by the General Assembly of Maryland, That 
the Hon. James M'Henry, Daniel of St. Thomas Jenifer, Daniel 
Carroll, John Francis Mercer, and Luther Martin, Esqrs., bo 
appointed and authorized, on behalf of this State, to meet such 
deputies as may be appointed and authorized, by any other of 
the United States, to assemble in Convention at Philadelphia, 
for the purpose of revising the federal system and to join with 
them in considering such alterations and further provisions as 
may be necessary to render the Federal Constitution adequate 
to the exigencies of the Union ; and in reporting such an act 
for that purpose to the United States in Congress assembled, 
as, when agreed to by them, and duly confirmed by the several 
States, will effectually provide for the same ; and the said dep- 
uties, or such of them as shall attend the said Convention, 
shall have full power to represent this State for the puposes 
aforesaid ; and the said deputies are hereby directed to report 
the proceedings of the said Convention, and any act agreed to 
therein, to the next session of the General Assembly of this State. 
By the House of Delegates, May 2G, 1787. Read and 
assented to. 

By order, WM. HARWOOD, Cleric. 



APPENDIX. 4 

True copy from the original, WM. HARWOOD, Clerk H. D. 
By the Senate, May 26, 1Y87. Read and assented to. 

By order, J. DORSEY, Clerk. 

True copy from the original. J. DORSEY, Clerk Senate. 

W. SMALLWOOD. 



COMMOWEALTH OF VIRGINIA. 

General Assembly begun and held at the Public Buildings in the 

city of Richmond, on Monday, the 16th day of October, 

in the year of our Lord, 1786. 

An Act for appointing Deputies from, this Commonwealth to 
a Convention p)roi)osed to be held in the City of Philadel- 
phia, in Maij next, for the Purpose of revising the Federal 
Constitution. 

Whereas, the commissioners who assembled at Annapolis, on 
the 14th day of September last, for the purpose of devising and 
reporting the means of enabling Congress to provide effectually 
for the commercial interests of the United States, have repre- 
sented the necessity of extending the revision of the federal 
system to all its defects, and have recommended that deputies 
for that purpose be appointed by the several legislatures, to 
meet in Convention, in the city of Philadelphia, on the 2d day of 
May next, — a provision which was preferable to a discussion 
of the subject in Congress, where it might be too much inter- 
rupted by the ordinary business before them, and where it 
would, besides, be deprived of the valuable counsels of sundry 
individuals who are disqualified by the constitution or laws of 
particular states, or restrained by peculiar circumstances from 
a seat in that assembly. And whereas the General Assembly 
of this commonwealth, taking into view the actual situation of 
the confederacy, as well as reflecting on the alarming repre- 
sentations made, from time to time, by the United States in 
Congress, particularly in their act of the 15th day of February 
last, can no longer doubt that the crisis is arrived at which the 
good people of America are to decide the solemn question— 
whether they will, by wise and magnanimous efforts, reap the 
just fruits of that independence, which they have so gloriously 
acquired, and of that union which they have cemented with so 
much of their common blood — or whether, by giving way to 
unmanly jealousies and pi*ejudices, or to partial and transitoiy 
interests, they will renounce the auspicious blessings prepared 



50 APPENDIX. 

for them by the revolution, and furnish to its enemien an 
eventful triumph over those by whose virtue and valor it has 
been accomplished : And whereas the same noble and extended 
policy, and the same fraternal and affectionate sentiments, 
which originally determined the citizens of this commonwealth 
to unite with their brethren of the other states in establishing a 
federal government, cannot but be felt with equal force now as 
motives to lay aside every inferior consideration, and to con- 
cur in such further concessions and provisions as may be nec- 
essary to secure the great objects for which that government 
was instituted, and to render the United States as happy in 
peace as they have been glorious in war : 

JBe it therefore enacted by the General Assembly of the 
Commonwealth of Virginia, That seven commissioners be 
appointed, by joint ballot of both houses of Assembly, who, or 
any three of them, are hereby authorized, as deputies from this 
commonwealth, to meet such deputies as may be appointed and 
authorized by other States, to assemble in Convention at Phil- 
adelphia, as above recommended, and to join with them in 
devising and discussing all such alterations and further pro- 
visions as may be necessary to render the Federal Constitution 
adequate to the exigencies of the Union ; and in reporting 
such an act, for that purpose, to the United States in Congress, 
as, when agreed to by them, and duly confirmed by the several 
states, will effectually provide for the same. 

And he it further enacted, That, in case of the death of any 
of the said deputies, or of their declining their appointments, 
the executive is hereby authorized to supply such vacancies ; 
and the governor is requested to transmit forthwith a copy of 
this act to the United States in Congress, and to the executives 
of each of the States in the Union. 

[Signed,] JOHN JONES, Speaker of the Senate. 

JOSEPH PRENTIS, Speaker of the House of Delegates. 

A true copy from the enrollment. — John Beckley, Clerk IT. D, 

Ik the House op Delegates. 

Monday, the Ath of December, 1786. 
The house, according to the order of the day, proceeded, by 
joint ballot with the Senate, to the appointment of seven depu- 
ties, from this commonwealth, to a Convention proposed to be 
held in the city of Philadelphia, in May next, for the purpose of 



APPENDIX. 51 

revising the Federal Constitution ; and the members having 
prepared tickets with the names of the persons to be appointed, 
and deposited the same in tlie ballot-boxes, Mr. Corbin, Mr. 
Matthews, Mr. David Stuart, Mr. George Nicholas, Mr. Rich- 
erd Lee, Mr. Wills, Mr. Thomas Smith, Mr. Goodall, and Mr. 
Tuberville, was nominated a committee to meet a committee 
from the Senate, in the conference chamber and jointly with 
them to examine the ballot-boxes, and report to the house on 
whom the majority of the votes should fall. The committee then 
withdrew, and, after some time, returned into the house, and 
reported that the committee had, according to order, met a com- 
mittee from the Senate, in the conference chamber, and jointly 
with them examined the ballot-boxes, and found a majority of 
votes in favor of George Washington, Patrick Henry, Edmund 
Randolph, John Blair, James Madison, George Mason, and 
George Wythe, Esqrs. [Extract from the journal.] 

JOHN BECKLEY, Clerk II. Delegates 
Attest, John Beckley, Clerk H. D. 

In the House of Sekators. 

Monday, the 4th of December, 1V86. 
The Senate, according to the order of the day, proceeded, by 
joint ballot with the House of Delegates, to the appointment 
of seven deputies, from this commonwealth, to a Convention 
proposed to be held in the city of Philadelphia, in May next, 
for the purpose of revising the Federal Constitution ; and the 
members having prepared tickets, with the names of the persons 
to be appointed, and deposited the same in the ballot-boxes, Mr. 
Anderson, Mr. Nelson and Mr. Lee, were nominated a com- 
mittee to meet a committee from the House of Delegates, in the 
conference chamber, and jointly Avith them to examine the ballot- 
boxes, and report to the house on whom the majority of votes 
should fall. The committee then withdrew, and, after some time, 
returned into the house, and reported that the committee had, 
according to order, met a committee from the House of Dele- 
o-ates, in the conference chamber, and jointly with them 
examined the ballot-boxes, and found a majority of votes in 
favor of George Washington, Patrick Henry, Edmund Ran- 
dolph, John Blair, James Madison, George Mason, and George 
Wythe, Esqrs. [Extract from the journal.] 

JOHN BECKLEY, Clerk H. D. 
Attest, H. Bkook, Clerk S, 



52 APPENDIX. 

[l. s.] Virginia, to wit : 

I do hereby certify and make known, to all whom it may con- 
cern, that John Beckley, Esq., is clerk of the House of Delegates 
for this commonwealth, and the proper officer for attesting the 
proceedings of the General Assembly of the said commonwealth, 
and that full faith and credit ought to be given to all things 
attested by the said John Beckley, Esq., by virtue of his office 
as aforesaid. 

Given under my hand, as governor of the commonwealth of 
Virginia, and under the seal thereof, at Richmond, this 4th day 
of May, 1V87. EDM. RANDOLPH. 

, [l. s.] Virginia, to wit : 

I do hereby certify, that Patrick Henry, Esq., one of the 
seven commissioners appointed by joint ballot of both houses of 
Assembly of the commonwealth of Virginia, authorized as a 
deputy therefrom to meet such dej)uties as might be aj)pointed 
and authorized by other states to assemble in Philadelphia, and 
to join with them in devising and discussing all such alterations 
and further provisions as might be necessary to render the 
Federal Constitution adequate to the exigencies of the Union, 
and in reporting such an act for that purpose to the United 
States in Congress as, when agreed to by them, and duly con- 
firmed by the several states, might effectually provide for the 
same, did decline his appointment aforesaid ; and thereupon, in 
pursuance of an act of the General Assembly, of the said com- 
monwealth, entitled " An Act for appointing deputies from this 
commonwealth to a Convention proposed to be held in the city 
of Philadelphia, in May next, for the purpose of revising the 
Federal Constitution," I do hereby, with the advice of the 
council of state, supply the said vacancy by nominating James 
M'Clurg, Esq., a deputy for the purposes aforesaid. 

Given under my hand, as governor of the said commenwealth, 

and under the seal thereof, this 2d day of May, in the year of 

our Lord, 1787. 

EDM. RANDOLPH. 



THE STATE OF NORTH CAROLINA. 
To the Son. Alexander Martin^ JEsq.^ Greeting : 

Whereas, our General Assembly, in their late session, holden 
at Fayetteville, by adjournment, in the month of January last, 



APPENDIX. 53 

did, by joint ballot of the Senate and House of Commons, elect 
Richard Caswell, Alexander Martin, William Richardson Davie, 
Richard Dobbs Spaight and Willie Jones, Esqrs., deputies to 
attend a Convention of delegates from the several United States 
of America, proposed to be held at the city of Philadelphia, in 
May next, for the purpose of revising the Federal Consti- 
tution : 

We do therefore, by these presents, nominate, coramissionate, 
and appoint you, the said Alexander Martin, one of the deputies 
for and in behalf, to meet with our other deputies at Philadel- 
pliia, on the 1st of May next, and with them, or any two of 
them, to confer with such deputies as may have been, or shall 
be, appointed by the other states, for the purpose aforesaid : 
To hold, exercise and enjoy, the appointment aforesaid, with 
all powers, authorities and emoluments, to the same belonging, 
or in any wise appertaining — you conforming, in every instance, 
to the act of our said Assembly, under which you are appointed. 

Witness, Richard Caswell, Esq., our governor, captain-gen- 
eral and commander-in-chief, under his hand and our seal, 
at Kinston, the 24th day of February, in the eleventh year 

of our independence, A. D, I'ZSY. 

RICH. CASWELL. 
By his excellency's command. 

Winston Caswell, P. Secretary. [l. s.] 

THE STATE OF NORTH CAROLINA. 

To the Hon. WilUmn Itichardson Davie, Esq., Greeting : 

Whereas our General Assembly, in their late session, holden 
at Fayetteville, by adjournment, in the month of January last, 
did, by joint ballot of the Senate and House of Commons, elect 
Richard Caswell, Alexander Martin, William Richardson Davie, 
Richard Dobbs Spaight and Willie Jones, Esqrs,, deputies to 
attend a Convention of delegates from the several United States 
of America, proposed to be held in the city of Philadelphia, 
in May next, for the purpose of revising the Federal Con- 
stitution, — 

We do therefore, by these presents nominate, commissionate 
and appoint you, the said William Richardson Davie, one of the 
deputies for and in our behalf, to meet with other deputies at 
Philadelphia, on the 1st day of May next, and with them, or any 
two of them, to confer with such deputies as may have b«en, or 
57 



54 APPENDIX. 

shall be, appointed by the other states, for the purpose afore- 
said: To hold, exercise and enjoy, the said aj)pointinent, with 
powers authorities and emoluments, to the same belonging, or 
in any Avise appertaining — you conforming, in every instance, 
to the act of our said Assembly, under which you are appointed. 
Witness, Richard Caswell, Esq., our governor, captain-general 
and commander-in-chief, under his hand and our great seal, 
at Kinston, the 24th day of February, in the eleventh year 
of our independence, A. D. 1787. 

RICH. CASWELL. 
By his excellency's command. 

Winston Caswell, P. Secretary. [l. s,] 

THE STATE OF NORTH CAROLINA. 

To the Hon. Richard Dohhs Spaight, Esq., Greeting : 

Whereas our General Assembly, in their late session, holden 
at Fayetteville, by adjournment, in the month of January last^ 
did, by joint ballot of the Senate and House of Commons, elect 
Richard Caswell, Alexander Martin, William Richardson Davie, 
Richard Dobbs Spaight and Willie Jones, Esqrs., deputies to 
attend a Convention of delegates from the several United States 
of America, proposed to be held in the city of Philadelphia, 
in May next, for the purpose of revising the Federal Con- 
stitution, — 

We do therefore, by these presents, nominate, commissionate 
and appoint you, the said Richard Dobbs Spaight, one of the 
deputies for and in behalf of us to meet with our other deputies 
at Philadelphia, on the 1st day of May next, and with them, or 
any two of them, to confer with such deputies as may have been 
or shall be, appointed by the other states, for the purposes afore- 
said: To hold, exercise, and enjoy, the said appointment, with 
all powers, authorities and emoluments, to the same incident 
and belonging, or in any wise appertaining — you conforming 
in every instance, to the act of our said Assembly, under which 
you are appointed. 

Witness, Richard Caswell, Esq., our governor, captain-gen- 
eral and commander-in-chief, under his hand and our 
great seal, at Kinston, the 14th day of April, in the eleventh 

year of our independence, A. D. 1787. 

RICH. CASWELL.. 
By his excellency's command. 

Winston Caswell, P. Secretary. [l. s.] 



APPENDIX. 55 

STATE OF NORTH CAROLINA. 
His excellency, Richard Caswell, Esq., governor, captain-gen- 
eral, and commander-in-chief, in and over the state aforesaid. 
To all to vihom these presents shall come, Greeting : 

Whereas, by an act of the General Assembly of the said State, 
passed the Gth day of January last, entitled " An Act for appoint- 
ing deputies from this State to a Convention proposed to be 
held in the city of Fhiladelpliia, in May next, for the purpose 
of revising the Federal Constitution," among other things it is 
enacted, " that five commissioners be appointed by a joint ballot 
of both both houses of Assembly, who, or any three of them, 
ai'e hereby authorized as deputies from this State to meet at 
Philadelphia, on the 1st day of May next, then and there to 
meet and confer with such deputies as may be appointed by 
the other States for similar purposes and with them to discuss 
and decide upon the most eifectual means to remove the defects 
of our federal union, and to procure the enlarged purposes 
which it was intended to effect ; and that they report such an 
act to the General Assembly of this State, as, when agreed to 
by them, will effectually provide for the same." And it is by 
the said act further enacted, " That, in case of the death or res- 
ignation of any of the deputies or of their declining their ap- 
pointments, his excellency, the governor for the time being, 
is hereby authorized to supply such vacancies" : " And whereas, 
in consequence of the said act, Richard Caswell, Alexander 
Martin, William Richardson Davie, Richard Dobbs Spaight, 
and Willie Jones, Esqrs., -were, by joint ballot of the two houses 
of Assembly, elected deputies for the purposes aforesaid ; And 
whereas the said Richard Casw^ell hath resigned his said 
appointment, as one of the deputies aforesaid ; — 

Now, know ye. That I have appointed, and by these pres- 
ents do appoint, the Hon. William Blount, Esq., one of the 
deputies to represent this State in the Convention aforesaid, in 
the room and stead of the aforesaid Richard Caswell, hereby 
giving and granting to the said William Blount the said pow- 
ers, privileges, and emoluments, which the said Richard Cas- 
well would have been vested with, ow entitled to, had he con- 
tinued in the appointment aforesaid. \ 

Given undor my liatid, and the <jreat seal of the State, at Kinston, tlie 
2;]d dav of April. Anno D^miui 1787, and in the 11th year of Ameri- 
can independence. RICH. CASWELL. 
By his excellency's command. 

WiiiSTON Cas\yk6,^ p.. Secretary^ {l. s.J 



56 APPENDIX. 

STATE OF NORTH CAROLINA. 

His excellency, Richard Caswell, Esq., governor, captain-gen- 
eral, and commander in-chief, in and over the state aforesaid. 
To all to v^hom these presents shall come, Greeting : 

Whereas, by an act of the General Assembly of the said 
State, passed the 6th day of January last, entitled " An Act 
for appointing deputies from this State, passed the 6th day of 
January last, entitled "An Act for appointing deputies from 
this State to a Convention proposed to be held in the city of 
Philadelphia, in May next, for the purpose of revising the 
Federal Constitution," among other things it is enacted, " that 
five commissioners be appointed by joint ballot of both houses 
of Assembly, who , or any three of them, are hereby author- 
ized, as deputies from this State to meet at Philadelphia, on 
the 1st day of May next, then and there to meet and confer 
with such deputies as may be appointed by the other States for 
similar purposes, and with th^m to discuss and decide upon the 
most elFectual means to remove the defects of our federal 
union, and to procure the enlarged purposes Avliich it vras 
intended to effect, and that they report such an act to the 
General Assembly of this State as, when agreed to by them, 
will effectually provide for the same ; " And it is by the said 
act further enacted, " That in case of the death or resignation 
of any of the deputies, or their declining their appointments, 
his excellency, the Governor for the time being, is hereby 
authorized to supply such vacancies ;" — 

And whereas, in consequence of the said act, Richard Cas- 
well, Alexander Martin, William Richardson Davie, Richard 
Dobbs Spaight, and Willie Jones, Esqrs., were, by joint ballot 
of the two houses of the Assembly, elected deputies for the 
purpose aforesaid ; And whereas the said Willie Jones hath 
declined his appointment as one of the deputies aforesaid ; 

Now, know ye, that I have appointed, and by these presents, 
do ajDpoint, the Hon. Hugh Williamson, Esq., one of the depu- 
ties to represent this State in the Convention aforesaid, in the 
room and stead of the aforesaid Willie Jones, hereby giving 
and granting to the said Hugh Williamson the same pow- 
ers, privileges, and emoluments, which the said W. Jones 
would have been vested with and entitled to, had he acted under 
the appointment aforesaid. 



APPENDIX. 57 

Given under my hand and the great seal of the State, at 
Kinston, the 3d day of April, Anno Domini 1787, and in 
the 11th year of American independence. 

By his excellency's command. RICH. CASWELL. 

Dallam Casavell, Pro. Secretary. 



STATE OF SOUTH CAROLINA. 

By his excellency, Thomas Pinckney, Esq., governor and com- 
mander-in-chief, in and over the State aforesaid. 
To the Hon. John Rutledge. Esq., Greeting : 

By virtue of the power and authority in me vested by th^ 
legislature of this State, in their act passed the 8th day of March 
last, I do hereby commission yon, the said John Rutledge, as 
one of the deputies appointed from this State, to meet such dep- 
uties or commissioners as may be appointed and authorized by 
other of the United States to assemble in Convention, at the city 
of Philadelphia, in the month of May next, or as soon thereaf- 
ter as may be, and to join with such deputies or commissioners 
(they being duly authorized and empowered) in devising and 
discussing all such alterations, clauses, articles, and provis- 
ions, as may be thought necessary to render the Federal 
Constitution entirely adequate to the actual situation and 
future good government of the confederated States ; and that 
you, together Avith the said deputies or commissioners, or a 
majority of them, who shall be present (provided the State be 
not represented by less than two), do join in reporting such an 
act to the United States in Congress assembled, as, when 
approved and agreed to by them, and duly ratified and confirmed 
by the several States, will efiectually provide for the exigencies 
of the Union. 

Given under my hand and the great seal of the State, in the 
city of Charleston, this 10th day of April, in the year of 
our Lord 1787, and of the sovereignty and independence 
of the United States of America the eleventh. 
By his excellency's command. THOMAS PINCKNEY. 

Peter Feenkau, Secretary. ' [l. s.] 

STATE OF SOUTH CAROLINA. 
By his excellency, Thomas Pinckney, Esq., governor and com- 
mander-in-chief in and over the State aforesaid. 
To the Hon. Charles Pinckney, Esq., Greeting : 
By virtue of power and authority in me vested by the legis- 



58 APPENDIX. 

lature of this State, in their act passed tlie 8th day of March 
last, I do hereby commission you, the said Charles Pinckney, as 
one of the deputies appointed from this State to meet such dep- 
uties or commissioners as may be appointed and authorized by 
other of the United States, to assemble in Convention at the 
city of Philadelphia, in the month of May next, or as soon 
thereafter as may be, and to join with such deputies or com- 
missioners (they being duly autliorized and empowered) in 
devising and discussing all such alterations, clauses, articles, 
and provisions, as may be thought necessary to render the 
Federal Constitution entirely adequate to the actual situation 
and future good government of the confederated States ; and 
that you, together with the said deputies or commissioners, or 
a majority of them who shall be present (provided the State be 
not represented by less than two), do join in reporting such an 
act to the United States. in Congress assembled, as, when 
approved and agreed to by them, and duly ratified and con- 
firmed by the several States, Avill efiectuully provide for the 
exigencies of the Union. 

Given under my hand and the great seal of the State, in the 
city of Charleston, this 10th day of April, in the year of our 
Lord 1787, and of the sovereignty and independence of 
the United States of America tlie eleventh. 

THOMAS PINCKNEY. 
By his excellency's command. 

Peter Fkeneau, Secretary. [l. s.] 

STATE OF SOUTH CAROLINA. 
By his excellency, Thomas Pinckney, Esq., governor and com- 
mander-in-chief in and over the state aforesaid. 
To the Hon. Charles Cotesioorth Plnchiey^ Esq , Greeting : 

By virtue of the power and authority in me vested by the 
legislature of this state, in their act passed the 8th day of 
March last, I do liereby commission you, the said Charles 
Cotesworth Pinckney, as one of the deputies appointed from 
this state, to meet such deputies or commissioners as may be 
appointed and authorized by other of the United States, to 
assemble in convention at the city of Philadelphia, in the 
month of May next, or as soon thereafter as maybe, and join 
with such deputies or commissioners (they being duly author- 
ized and empowered) in devising and discussing all such altera- 



APPENDIX. . 59 

tions, cliuises, articles, and provisions, as may be thought 
necessary to render the Federal Constitution entirely adequate 
to the actual situation and future good government of the con- 
federated states ; together with the said deputies or connnis- 
sioners, or a majority of them who shall be present (provided 
the state be not represented by less than two), to join in report- 
ing such an act to the United States in Congress assembled, 
as, when approved and agreed to by them, and duly ratified and 
confirmed by the several states, will effectually provide for the 
exigencies of the Uuion. 

Given under my hand and the great seal of the state, in the 
city of Charleston, this 10th day of April, in the year of 
our Lord 1787, and of the sovereignty and indej^endence 
of the United States of America the eleventh. 

THOMAS PINCKNEY. 
By his excellency's command. 

Peter Freneau, Secretary. [l. s.] 

STATE OF SOUTH CAROLINA. 
By his excellency, Thomas Pinckney, Esq., governor and com- 
mander-in-chief over the state aforesaid. 
To the Hon. Pierce Butler^ Esq., Greeting : 

By virtue of the power and authority in me vested by the 
legislature of this state, in their act passed the 8th day of 
March last, I do hereby commission you, the said Pierce Butler, 
as one of the deputies appointed from this state, to meet 
such deputies or commissioners as may be appointed or author- 
ized by other of the United States, to assemble in Conven- 
tion at the city of Philadelphia, in the month of May next, or 
as soon thereafter as may be, and to join with such deputies or 
commissioners (they being duly authorized and emjDOwered) 
in devising and discussing all such alterations, clauses, articles 
and provisions, as may be thought necessary to render the 
Federal Constitution entirely adequate to the actual situation 
and future good government of the confederated states; and 
that you, together with the said deputies and commissioners, or 
a majority of them who shall be present (provided the state 
be not represented by less than two), do join in reporting such 
an act to the United States in Congress assembled, as, when 
approved and agreed to by them, and duly ratified and con- 
firmed by the several states, Avill efiectually provide for the exi- 
gencies of the Union. 



60 APPENDIX. 

Given under my hand and the great seal of the state, in the 
city of Charleston, this 10th day of April, in the year 
our Lord 1787, and of the sovereignty and independence 
of the United States of America the eleventh. 

THOMAS PINCKNEY. 
By his excellency's command. 

Pjeter Freneau, Secretary. [l. s.] 



STATE OF GEORGIA. 

By the Hon. George Mathews, Esq., captain-general, gover- 
nor, and commander-in-chief in and over the state aforesaid. 
To all to whom these presents shall come^ Greeting : 

Know ye, That John Milton, Esq., who hath certified the 
annexed copy of an ordinance, entitled " An Ordinance for the 
ApjDointment of I>eputies from this state, for the Purpose of 
revising the Federal Constitution," is secretary of the said 
state, in whose office the archives of the same are' deposited ; 
Therefore, all due faith, credit, and authority, are, and ought 
to be, had and given the same. 

In testimon}'- whereof, I have hereunto set my hand, and 
caused the great seal of the said state to be put and affixed, 
at Augusta, the 24th day of April, in the year of our Lord 
1787, and of our sovereignty and independence the 
eleventh. GEO. MATHEWS. 

By his honor's command. — J. Milton. [l. s.] 

An Ordinance for the Appointment of Deputies from this 
State^forthe Purpose of revising the Federal Constitution. 

JBe it ordained hy the representatives of the freemen of the 
State of Georgia, i?i General Assembly met, and by authority 
of the same, that William Few, Abraham Baldwin, William 
Pierce, George Walton, William Houston, and Nathaniel Pen 
dleton, Esqrs., be, and they are hereby, appointed commission- 
ers, who, or any two or more of them, are hereby authorized, 
as deputies from this state, to meet such deputies as may be 
appointed and authorized by other states, to assemble in Con- 
vention at Philadelphia, and to join with them in devising and 
discussing all such alterations and further provisions as may 
be necessary to render the Federal Constitution adequate to the 
exigencies of the Union, and in reporting such an act for that 
purpose to the United States in Congress assembled as, when 



APPENDIX. 61 

agreed to by them, and duly confirmed by the several states, 
will effectually provide for the same. In case of the death of 
any of the said deputies, cr of their declining their appoint- 
ments, the executive are hereby authorized to supply such 
vacancies. 

By order of the house. 

Signed, WM. GIBBONS, SpeaJcer. 

Augusta, the 10th February^ 1787. 

Georgia, Secretanfs Office. 

The above is a true copy from the original ordinance depos- 
ited in my office. 

Augusta, 24th April, 1787. J. MILTON, Secretary. 

The State of Georgia, by the grace of God, free, sovereign, and 

independent. 
To the Hon William Feic, Esq. : 

Whereas you, the said William Few, are, in and by an ordi- 
nance of the General Assembly of our said state, nominated 
and appointed a deputy to represent the same in a Convention 
of the United States, to be assembled at Philadelphia, for the 
purposes of devising and discussing all such alterations and 
further provisions as may be necessary to render the Federal 
Constitution adequate to the exigencies of the Union, — 

You are therefore hereby commissioned to proceed on the 
duties required of you in virtue of the said ordinance. 

Witness our trusty and well-beloved George Mathews, 
Esq., our captain-general, governor, and commander-in- 
chief, under his hand and our great seal, this 17th day of 
April, in the year of our Lord 1787, and of our sovereignty 
and independence the eleventh. 

GEO. MATHEWS, [l. s.] 
By his honor's command. 

J. Milton, Secretary. 

The State of Georgia, by the grace of God, free, sovereign, 
and independent, 

To the Hon. 'William Pierce, Esq. 

Whereas you, the said William Pierce, are, in and by an ordi- 
nance of the General Assembly of our said state, nominated and 
appointed a deputy to represent the same in Convention of the 
United States, to be assembled at Philadelphia, for the purpose 
58 



62 APPENDIX. 

of devising and discussing all such alterations and furthei" pro- 
visions as may be necessary to render the Federal Constitution 
adequate to the exigencies of the Union, — You are therefore 
hereby commissioned to proceed on the duties required of you 
in virtue of the said ordinance. 

Witness our trusty and well-beloved George Mathews, Esq., 
our captain-general, governor and commander-in-chief, 
under his hand and our great seal, at Augusta, this 1 7th 
day of April, in the year of our Lord 1787, and of our 
sovereignty and independence the eleventh. 

GEORGE MATHEWS, [l. s.] 
By his honor's command. 

J. MiLTON", Secretary. 



The State of Georgia, by the grace of God, free, sovereign, and 
independent. 

To the Hon. William Houston, Esq. : 

Whereas you, the said William Houston, are, in and by an 
ordinance of the General Assembly of our said state, nominated 
and appointed a delegate to represent the same in Conven- 
tion of the United States, to be assembled at Philadelphia, for 
the purpose of devising and discussing all such alterations and 
further provisions as may be necessary to render the Federal 
Constitution adequate to the exigencies of the Union, — 

You are therefore hereby commissioned to proceed on the 
duties required of you in virtue of the same ordinance. 

Witness our trusty and well-beloved George Mathews, Esq., 
our captain-general, governor and commander-in-chief, 
under his hand and our great seal, at Augusta, this 1 7th 
day of April, in the year of our Lord 1787, and of our 
sovereignty and independence the eleventh. 

GEO. MATHEWS, [l. s.] 
By his honor's command. 

J. Milton, Secretary. 

INTO. 11. 

JOURNAL OF THE FEDERAL CONVENTION. 

This Convention assembled on the 14th of May 1787, at the 
State House in the city of Philadelphia, and adjourned from 



APPENDIX. 63 

time to time until the 25th of that month .when the following 
Dele"-atcs appeared and took seats in the Convention : 

Masmchusetti. Virgin ia. 

The Hon. Rufus King, Esq. His Excellency Gforge Wasliington, Esq. 

,, T^ 7 His Excellency E. Randulnli, Esq. 

Miolork. The Hon. John Blair, 

Tlie Hon. Robert Yate;', and j-mies Madison 

Alexander Hamilton, Esqrs. Geor"-e Mason ' 

New Jersey. George Wvthe, and 

m TT -n A-n i James M'Clnrg, Esqrs. 

Tlie Hon. David Brearly, ,, ,, „ ,. 

i.r rii 1 11 IT .« ;i North (arolina, 

\Vin. CnmcliiU Houston, and .' 

Wm. Patterson, Esqrs. The Hon. Alexander Martin, 

. William Richardson Davie, 

Pennsylvania. Richard Dobbs Spaitrht, and 

The Hon. Robert Morris, Hugh Williamson, Esqrs. 

Thomas Fitzsimmons, g^^^j^ Carolina. 

James Wilson, and m, -n- t , -r. i j 

Gouverneur Morris, Esqrs. J^e Hoii^ John RiUledge 

' ^ Charles Cotesworih riuckney, 

Delaware. Charles Pinckney, and 

The Hon. George Read, ^i^^^ce Butler, E.^qrs. 

Rii'hard Bassett, and Georgia. 

Jacob Broom, Esqrs. The Hon. William Few, Esq. 

NO. 12. 

The Convention organized by electing George Washington as 
president, and William Jackson, as secretary of the Convention. 
The deliberations of this Convention resulted in submitting 
to Congress a draft of the Constitution accompanied by the fol- 
lowing resolutions : 

" Resolved, That the preceding Constitution be laid before 
the United States in Congress assembled ; and that it is the 
opinion of this Convention, that it should afterwards be sub- 
mitted to a convention of delegates chosen in each state by the 
people thereof, under the recommendation of its legislature, for 
their assent and ratification ; and that each Convention, assent- 
ing to and ratifying the same, should give notice thereof to the 
United States in Congress assembled. 

" Resolved., That it is the opinion of this Convention, that, as 
soon as the conventions of nine states shall have ratified lliis 
Constitution, the United States in Congress assembled should fix 
a day on which electors should be appointed by the states 
which shall have ratified the same ; and a day on which tlie 
electors should assemble to vote for the president and the time 
and place for commencing proceedings under this Constitution ; 
that, after such publication, the electors should be appointed, 
and the senators and representatiees elected ; that the electors 



64 APPENDIX. 

should meet on the day fixed for the election of the President, 
and should transmit their votes, certified, signed, sealed, and 
directed, as the Constitution requires, to the secretary of the 
United States in Congress assembled; that the senators and 
representatives should convene at the time and place assigned ; 
that the senators should appoint a president of the Senate for 
the sole purpose of receiving, opening, and counting the votes, 
for President ; and that, after he shall be chosen, the Congress, 
together with the President, should without delay, proceed 
to execute this Constitution." 

" Provided^ That no state shall be restrained from imposing 
the usual duties on produce exported fi'om that state, for the 
sole purpose of defraying the charges of inspecting, packing, 
storing, and indemnifying the losses on such produce, while in 
the custody of public officers; but all such regulations shall, 
in case of abuse, be subject to the revision and control of Con- 
gress :" 

CONSTITUTIOK 

WE the people of the United States in order to form a more 
perfect union, establish justice, ensure domestic tranquillity, 
provide for the common defence, promote the general wel- 
fare and secure the blessings of liberty to ourselves and our 
posterity, do ordain and establish this Constitution for the 
United States of America. 

ARTICLE I. 

SECTION" I. 

All legislative powers herein granted shall be vested in a 
Congress of the United States, which shall consist of a Senate 
and House of liepresentatives. 

SECTION II. 

The House of Representatives shall be composed of members 
chosen every second year by the people of the several States, 
and the electors in each State shall have the qualifications 
requisite for electors of the most numerous branch of the State 
Legislature. 

No person shall be a Representative who shall not have 
attained the age of twenty-five years, and been seven years a 
(?.tizen of the United States, and who shall not, when elected, 
be an inhabitant of that State in which he shall be chosen. 



APPENDIX. 65 

Representatives and direct taxes shall be apportioned among 
the several States which may be included within this Union, 
according to their respective numbers, which shall be deter- 
mined by adding to the whole number of free persons, including 
those bound to service for a term of years, and excluding Indians 
not taxed, three fifths of all other persons. The actual enumer- 
ation shall be made within three years after the first meeting of 
the Congress of the United States, and within every subsequent 
term of ten years, in such manner as they shall by law direct. 
The number of Representatives shall not exceed one for every 
thirty thousand, but each State shall have at least one Repre- 
sentative ; and until such enumeration shall be made, the State 
of New Hampshire shall be entitled to choose three, Massa- 
chusetts eight, Rhode Island and Providence Plantations one, 
Connecticut five, New York six. New Jersey four, Pennsylvania 
eight, Delaioare one, 3Iaryland six, Virginia ten. North Caro- 
lina five, South Carolina five, and Georgia three. 

When vacancies haj^pen in the representation from any State, 
the Executive authority thereof shall issue writs of election to 
fill such vacancies. 

The House of Representatives shall choose their Speaker and 
other ofiicers ; and shall have the sole power of impeachment. 

SECTION III. 

The Senate of the United States shall be composed of two 
Senators from each State, chosen by the Legislature thereof, for 
six years ; and each Senator shall have one vote. 

Immediately after they shall be assembled in consequence of 
the first election, they shall be divided as equally as may be, 
into three classes. The seats of the Senators of the first class 
shall be vacated at the expiration of the second year, of 
the second class at the expiration of the fourth year, and of the 
third class at the expiration of the sixth year, so that one third 
may be chosen every second year ; and if vacancies happen by 
resignation or otherwise, during the recess of the Legislature 
of any State, the executive thereof may make temporary 
appointments, until the next meeting of the Legislature, which 
shall then fill such vacancies. 

No person shall be a Senator who shall not have attained to 
the age of thirty years, and been nine years a citizen of the 
United States, and who shall not, when elected, be an inhab- 
itant of that State for which he shall be chosen. 



66 APPENDIX. 

I 

The Vice-President of the United States shall be President 
of the Senate, Tbut shall have no vote unless they be equally- 
divided. 

The Senate shall choose their other officers, and also a presi- 
dent pro-tempore, in the absence of the Vice-President or when 
he shall exercise the office of President of the United States. 

The Senate shall have the sole power to try all impeach- 
ments : when sitting for that purpose, they shall be on oath or 
affirmation. When the President of the United States is tried 
the Chief Justice shall preside : and no person shall be con- 
victed without the concurrence of two-thirds of the members 
jjresent. 

Judgment in cases of impeachment shall not extend farther 
than to removal from office, and disqualification to hold and 
enjoy any office of honor, trust, or profit under the United 
States : but the party convicted shall nevertheless be liable and 
subject to indictment, trial, judgment and punishment, accord- 
ing to law. 

SECTIOlSr IV. 

The times, places and manner of holding elections for Sena- 
tors and Representatives, shall be prescribed in each State by 
the legislature thereof; but the Congress may at any time 
by law make or alter such regulations, except as to the places 
of choosing Senators. 

The Congress shall assemble at least once in every year, and 
such meeting shall be on the first Monday in December unless 
they shall by law appoint a different day. 

SECTION v. 

Each house shall be the judge of the elections, returns and 
qualifications of its own members, and a majority of each shall 
constitute a quorum to do business ; but a smaller number may 
adjourn from day to day, and may be authorized to compel the 
attendance of absent members, in such manner, and u.nder such 
jjcnalties as each house may provide. 

Each house may determine the rules of its proceedings, pun- 
ish its members for disorderly behavior, and, with the concur- 
rence of two thirds, expel a member. 

Each House shall keep a journal of its pi'oceedings, and from 
time to time publish the same, excepting such jaarts as may 
in their judgment require secrecy ; and the yeas and nays 



APPENDIX. 67 

of the members of either House on any question shall, at the 
desire of one fifth of those present, be entered on the journal. 
Neither House, during the Session of Congress, shall, with- 
out the consent of the other, adjourn for more than three days, 
nor to any other place than that in which the two houses shall 
be sitting. 

SECTION VI. 

The Senators and Representatives shall receive a compensa- 
tion for their services, to be ascertained by law, and paid out of 
the Treasury of the United States. They shall in all cases 
except treason, felony and breach of the peace, be privileged 
from arrest during their attendance at the session of their res- 
pective Houses, and in going to and returning from the same; 
and for any speech or debate in either house, they shall not be 
questioned in any other place. 

No Senator or Representative shall, during the time for which 
he was elected, be appointed to any civil office under the 
authority of the United States, Avhich shall have been created, 
or the emoluments whereof shall have been increased during 
such time: and no person holding any office undei' the United 
States shall be a member of either House during his continu- 
ance in office. 

SECTION VII. 

All bills for raising revenue shall originate in the House of 
Representatives ; but the Senate may j^ropose, or concur with, 
amendments, as on other bills. 

Every bill which shall have passed the House "of Repre- 
sentatives, and the Senate, shall, before it become a law, be 
presented to the President of the United States ; if he approve 
he shall sign it, bat if not he shall return it, with his objections 
to that House in which it shall have originated, Avho shall enter 
the objections at large on their journal, and. proceed to 
reconsider it. If after such reconsideration two-thirds of that 
House shall agree to pass the bill, it shall be sent, together with 
the objections, to the other House, by which it shall likewise be 
reconsidered, and if approved by two-thirds of that House, it 
shall become a law. But in all such cases the votes of both 
Houses shall be determined by yeas and nays, and the names 
of the persons voting for and against the bill shall be entered 
on the journal of each House respectively. If any bill shall 
not be returned by the President within ten days (Sundays 



68 APPENDIX. 

excepted,) after it shall have been presented to him, the same 
shall be a law, in like manner as if he had signed it, unless the 
Congress by their adjournment prevent its return, in which case 
it shall not be a law. 

Every order, resolution, or vote to which the concurrence of 
the Senate and House of Representatives may be necessary 
(except on a question of adjournment) shall be presented to 
the President of the United States ; and before the same shall 
take effect, shall be approved by him, or, being disapproved by 
him, shall be repassed by two-thirds of the Senate and House 
of Representatives, according to the rules and limitations pre- 
scribed in the case of a bill. 

SECTIOX VIII. 

The Congress shall have power To lay and collect taxes, 
duties, imposts and excises, to pay the debts and provide for 
the common defence and general welfare of the United States ; 
but all duties, imposts and exercises shall be uniform throughout 
the United States ; 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes ; 

To establish an uniform rule of naturalization, and uniform 

laws on the subject of bankruptcies throughout the United 

States ; 

To coin money, regulate the value thereof, and of foreign 

•coin, and fix the standard of weights and measures ; 

To provide for the punishment of counterfeiting the secu- 
rities and current coin of the United States ; 

To establish post offices and post roads ; 

To promote the progress of science and useful arts, by secur- 
ing for limited times to authors and inventors the exclusive 
right to their respective writings and discoveries ; 

To constitute tribunals inferior to the supreme court ; 

To define and punish piracies and felonies committed on the 
high seas and offences against the law of nations ; 

To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water ; 

To raise and support armies, but no appropriation of money 
to that use shall be for a longer term than two years ; 

To provide and maintain a navy ; 



APPENDIX. 69 

To make rules for the government and regulation of the land 
and naval forces ; 

To provide for calling forth the militia to execute the laws 
of the Union, suppress insurrections and repel invasions ; 

To provide for organizing, arming and discijjlining, the 
militia, and for governing such part of them as may be 
employed in the service of the United States, reserving to 
the States respectively, the appointment of the officers, and the 
authority of training the militia according to the discipline 
prescribed by Congress ; 

To exercise exclusive legislation in all cases whatsoever over 
such district (not exceeding ten miles square) as may by ces- 
sion of particular States, and the acceptance of Congress, become 
the seat of the government of the United States, and to exer- 
cise like authority over all places purchased by the consent of 
the Legislature of the State in which the same shall be, for the 
erection of forts, magazines, arsenals, dock-yards, and other 
needful buildings ; — And 

To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other 
powers vested by this constitution in the government of the 
United States, or in any department or officer thereof. 

SECTION IX. 

The migration or importation of such persons as any of the 
States now existing shall think proper to admit, shall not be 
prohibited by the Congress prior to the year eighteen hundred 
and eight, but a tax or duty may be imposed on such importa- 
tion, not exceeding ten dollars for each person. 

The privilege of the writ of Habeas Corpus shall not be sus- 
pended, unless when in cases of rebellion or invasion the public 
safety may require it. 

No bill of attainder or ex post facto law shall be passed. 

No capitation, or other direct, tax shall be laid, unless in pro- 
portion to the census or enumeration herein before directed to 
to be taken. 

No tax or duty shall be laid on articles exported from any 
State, 

No preference shall be given by any regulation of commerce 

or revenue to the ports of one State over those of another : nor 

shall vessels bound to, or from, one State, be obliged to enter, 

clear, or pay duties in another, 
59 



70 APPENDIX. 

No money shall be drawn from tho Treasury, but in conse- 
quonoe of appropriations made by law ; and a regular statement 
and aceoimt of the receipts and expenditures of all public 
money shall be published from time to time. 

No title of nobility shall be grated by the United States : and 
no person holding any olliee of proiit or trust under them, shall, 
without the consent of the Congress, accept of any present, 
emolument, othce, or title, of any kind whatever, from any 
king, prince, or foreign State. 

SKCTION X. 

No State shall enter into any treaty, alliance, or confedera- 
tion ; grant letters of marque and reprisal ; coin money ; emit 
bills of credit ; make anything but gold and silver coin a tender 
in payment of debts ; pass any bill of attainder, ex post facto 
law ; ov law impairing the obligation of contracts ; or grant any 
title of nobility. 

No State shall, Avithout the consent of the Congress, lay any 
imposts or duties on imports or exports, except wliat may be 
absolutely necessary for executing its inspection laws : and the 
net produce of all duties and imposts, laid by any State on 
imports or exports, shall be for the use of the Treasury of 
the United States ; and all such laws shall be subject to the 
revision and control of the Congress. 

No State shall, without the consent of Congress, lay any duty 
of tonnage, keep troops, or ships of Avar in time of peace, enter 
into any agreement or compact with another State, or with a 
foreign power, or engage in war, unless actually invaded, or 
in such imminent danger as will not admit of delay. 

ARTICLE II. 

SECTIOX I. 

The executive power shall be vested in a President of the 
United States of America. He shall hold his office during the 
term of four years, and, together Avith the Vice-President, 
chosen for the same term, be elected as follows ; 

Each State shall appoint, in such manner as the Legislature 
thereof may direct, a number of electors equal to the whole 
number of Senators and Representatives to which the State may 
be entitled in the Congress ; but no Senator or Representative, 
or person holding an office of trust or profit under the L^nited 
States, shall be appointed .an elector. 



APPENDIX. 71 

The electors shall meet in their respective States, and vote by 
ballot for two persons, of whom one at least shall not be an in- 
habitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of 
votes for each ; which list they shall sign and certify, and trans- 
mit sealed to the seat of the government of the United States, 
directed to the President of the Senate. The President of the 
Senate shall, in the presence of tlie Senate and House of Repre- 
sentatives, open all the certificates, and the votes shall then be 
counted. The person having the greatest number of votes shall 
be the President, if such number be a majority of the whole 
number of electors appointed; and if there be more than one 
who have such majority, and have an equal number of votes, 
then the House of Representatives shall immediately choose, by 
ballot one of them for President ; and if no person have a 
majority, then from the five highest on the list the said House 
shall, in like manner, choose tlie President. But in choosing 
the President, the votes shall be taken by States, the represen- 
tation from each State having one vote; a quorum for this pur- 
pose shall consist of a member or meml>ers from two-thirds of 
the States, and a majority of all the States shall be necessary to 
a choice. In every case, after the choice of the President, the 
person having the greatest number of votes of the electors shall 
be the Vice-President. But if there should remain two or 
more who have equal votes the Senate shall choose from them 
by ballot the Vice-President. 

The Congress may determine the time of choosing the elec- 
tors, and the day on which they shall give their votes ; which 
day shall be the same throughout the United States. 

No person except a natural born citizen, or a citizen of the 
United States, at the time of the adoption of this Constitution, 
shall be eligible to the office of President; neither shall any 
person be eligible to that office who shall not have attained to 
the age of thirty-five years, and been fourteen years a resident 
within the United States, 

In case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve on the Vice- 
President, and the Congress may by law provide for the case 
of removal, death, resignation, or inability, both of the Presi- 
dent and Vice-President, decla,ring what officer shall then act 



72 APPENDIX. 

as President, and such officer sliall act accordingly, until the 
disability be removed or a President shall be elected. 

The President shall, at stated times, receive for his services, 
a compensation, which shall neither be increased or diminished 
during the period for which he shall have been elected, and 
he shall not receive within that period any other emolument 
from the United States, or any of them. 

Before he enter on the execution of his office, he shall take the 
following oath or affirmation : " I do solemnly sioear [or affirm) 
that I will faithfully execute the office of President of the United 
States, and will, to the best of tny ability, preserve, protect, and 
defend the Constitution of the United States.'''' 

SECTION II. 

The President shall be Commander in Chief of the army 
and navy of the United States, and of the militia of the several 
States, when called into the actual service of the United States ; 
he may require the opinion, in writing, of the principal officer 
in each of the executive departments, upon anj?- subject relating 
to the duties of their respective offices ; and he shall have power 
to grant reprieves and pardons for offenses against the United 
States, except in cases of impeachment. 

He shall have power, by and with the advice and consent of 
the .Senate, to make ti-eaties, provided two-thirds of the Senators 
present concur ; and he shall nominate, and by and with the 
advice and consent of the Senate, shall aj^point ambassadors, other 
public ministers and consuls, judges of the supreme coin-t, and all 
other officers of the United States, whose appointments are not 
herein otherwise provided for, and which shall be established by 
law : But the Congress may by law vest the appointment of 
such inferior officers as they think proper, in the President 
alone, in the courts of law, or in the heads of departments. 

The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting com- 
missions which shall expire at the end of their next session. 

SECTION III. 

He shall from time to time give to the Congress the informa- 
tion of the state of the Union, and recommend to their consider- 
ation such measures as he shall judge necessary and expedient ; 
he may, on extraordinary occasions, convene both Houses, or 
either of them, and, in case of disagreement between them, with 
respect to the time of adjournment, he may adjourn them to 



APPENDIX. 78 

such time as he shall think i:)roper ; he shall receive ambassadors 
and other public ministers ; he shall take care that the laws be 
faithfully executed, and shall commission all the officers of the 
United States. 

SECTION IV. 

The President, Vice-President and all civil officers of the 
United States, shall be removed from office on impeachment for, 
and conviction of, treason, bribery, or other high crimes and 
misdemeanors. 

ARTICLE III. 

SECTION I. 

The judicial power of the United States shall be vested in 
one Supreme Court, and in such inferior courts as the Congress 
may from time to time ordain and establish. The judges, 
both of the supreme and inferior courts, shall hold their offices 
during good behaviour, and shall, at stated times, receive for 
their services, a compensation, which shall not be diminished 
during their continuance in office. 

SECTION II. 

The judicial power shall extend to all cases in law and equity, 
arising under this constitution, the laws of the United States, 
and the treaties made, or which shall be made, under their 
authority; to all cases — affecting ambassadors, other public min- 
isters, and consuls ; — to all cases of admiralty and maritime juris- 
diction; — to controversies between two or more States; — 
between a State and citizens of another State ; — between citizens 
of diffiarent States; — between citizens of the same State, claiming 
lands under grants of different States, and between a State or 
the citizens thereof, and foreign States, citizens or subjects. 

In all cases affecting ambassadors, other public ministers and 
consuls, and those in which a State shall be a party, the supreme 
court shall have original jurisdiction. In all the other cases 
before-mentioned, the supreme court shall have appellate juris- 
diction, both as to law and fact, with such exceptions, and under 
such regulations, as the Congress shall make. 

The trial of all crimes, except in cases of impeachment, shall 
be by jury ; and such trial shall be held in the State where the 
said crimes shall have been committed ; but when not committed 
within any State, the trial shall be at such place or places as the 
Congress may by law have directed. 



74 APPENDIX. 

SECTION III. 

Treason against the United States, shall consist only in levying 
war against them, or in adhering to their enemies, giving them 
aid and comfort. No person shall be convicted of treason, 
unless on the testimony of two witnesses to the same overt act, 
or on confession in open court. 

The Congress shall have jDower to declare the punishment of 
treason, but no attainder of treason shall work corruption 
of blood, or forfeiture except during the life of the person 
attainted. 

ARTICLE IV. 

SECTION I. 

Full faith and credit shall be given in each State to the 
public acts, records, and judicial proceedings of every other 
State. And the Congress may by general laws prescribe the 
manner in which such acts, records, and proceedings shall be 
proved, and the effect thereof. 

SECTION II. 

The citizens of each State shall be entitled to all the privi- 
leges and immunities of citizens in the several States. 

A person charged in any State with treason, felony, or other 
crime, who shall flee from justice, and be found in another State, 
shall on demand of the executive authority of the State from 
which he fled, be delivered up, to be removed to the State 
having jurisdiction of the crime. 

No person held to service or labor in one State under the 
laws thereof, escaping into another, shall, in consequence of any 
law or regulation therein, be discharged from such service or 
labor, but shall be delivered up on claim of the party to whom 
such service or labor may be due. 

SECTION III. 

New States may be admitted by the Congress into this 
Union ; but no new State shall be formed or erected within the 
jurisdiction of any other State ; nor any State be formed by 
the junction of two or more States, or parts of States, with- 
out the consent of the Legislature of the States concerned as 
well as of the Congress. 

The Congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States ; and nothing in this 



APPENDIX. "5 

constitution shall be so construed as to prejudice any claims of 
the United States, or of any particular State. 

SECTIO^r IV. 

The United States shall guaranty to every state in this Union 
a republican form of government, and shall protect each of 
them against invasion ; and on application of the legislature, or 
of the executive (when the legislature cannot be convened) 
against domestic violence. 

ARTICLE V. 

The Congress, Avhenevcr two-thirds of both Houses shall 
deem it necessary, shall propose amendments to this constitu- 
tion, or, on the application of the legislatures of two-thirds of 
the several States, shall call a convention for proposing amend- 
ments, which in either case, shall be valid to all intents and 
purposes, as part of this constitution, when ratified by the 
legislatures of three-fourths of the several States, or by conven- 
tions in three-fourths thereof, as the one or the other mode of 
ratification may be proposed by the Congress ; provided, that 
no amendment, which may be made prior to the year one 
thousand eight hundred and eight, shall in any manner affect 
the first and fourth clauses in the ninth section of the first 
article ; and that no State, without its consent, shall be dej)rived 
of its equal suifrage in the Senate. 

APvTICLE VI. 

All debts contracted and engagements entered into, before 
the adoption of this constitution, shall be as valid against the 
United States under this constitution, as under the confedera- 
tion. 

This constitution, and the laws of the United States which 
shall be made in pursuance thereof; and all treaties made, 
or which shall be made, under the authority of the United States, 
shall be the supreme law of the land ; and the judges in every 
state shall be bound thereby, any thing in the constitution or 
laAvs of any State to the contraiy notwithstanding. 

The Senators and Representatives before mentioned, and the 
members of the several State legislatures, and all executive and 
judicial officers, both of the United States and of the several 
States shall be bound, by oath or affirmation, to sujDport this 
constitution : but no religious test shall ever be required as a 
qualification to any office or public trust under the United 
States. 



76 APPENDIX. 

• ARTICLE VII. 

The ratification of the conventions of nine states, shall be suf- 
ficient for the establishment of this constitution between the 
States so ratifying the same. 

Done in convention by the unanimous consent of the States 
present the seventeenth day of September in the year of our 
Lord one thousand seven hundred and eighty-seven and of 
the independence of the United States of America the 
twelfth. In witness whereof we have hereunto subscribed 

our names. 

GEO. WASHINGTON, 

President^ and deputy frotn Vtrginia. 

NEW HAMPSHIRE. CONNECTICUT 

John Langdon, William Samuel Johnson, 

Nicholas G-ilman. Eoger Sherman. 

MASSACHUSETTS. jlg-^y yoRK. 

Nathaniel Gorham, Alexander Hamilton. 

Kufus King. 

*= MARYLAND. 

NEW JERSEY. T H/T'TT 

-rrr-ii T- • 4. James M Henry, 

William Livmgston, -n • i ea^ m t -e 

D'lv'd "R 1 Daniel of St. Tho. Jenifer, 

William Patterson, 

Jonathan Dayton. Virginia. 

PENNSYLVANIA. John Blair, 

Benjamin Franklin, 'Barnes Madison, jr. 
Thomas Mifflin, north Carolina. 

Robert Morris, William Blomit, 

George Clymer, Richard Dobbs Spaight, 

Thomas Fitzimons, Hugh Williamson. 
Jared IngersoU, south Carolina. 

James Wilson, John Rutledge, 

Gouverneur Morris. Charles C. Pinckney, 

DELAWARE. Charlcs Pinckney, 

George Reed, Pierce Butler. 
Gunning Bedford, jun. Georgia. 

John Dickinson, William Few, 

Richard Bassett, Abraham Baldwin. 
Jacob Broom. 

Attest: WILLIAM JACKSON, Secretary. 

On the 17th of September, 1787, the Federal Convention, 
having signed the draft of the constitution and closed its labors, 
adjourned without day. 

On the 28th of September, 1787, the Congress having 
received the report of the Convention assembled at Phila- 
delphia, and which had drafted the Constitution, resolved to 
submit the same to the people of the several States. This 
resolution was in these words : 

^'■Resolved, unanimously^ That the said report, with the 
resolutions and letter accompanying the same, be transmitted 



APPENDIX. 77 

to the several legislatures, in order to he submitted to a Coti- 
vention of delegates chosen in each state, by the people thereof, 
in conformity to the resolves of the Convention made and pro- 
vided in that case." 

The report of the draft of the Constitution was accordingly 
submitted to the several state legislatures, which severally 
passed acts calling conventions, for the purpose of submitting 
the draft of the Constitution to the consideration of the people 
through their delegates chosen for that purpose. These Con- 
ventions having been called, and the draft of the Constitution 
having been submitted to them, they severally reported to 
Congress their ratification of the same as follows : 

THE RATIFICATIONS OF THE TWELVE STATES, 

Reported in the General Convention. 
DELAWARE.— December 7, 1787. 
We, the deputies of the people of the Delaware state, in 
Convention met, having taken in our serious consideration the 
Federal Constitution proposed and agreed upon by the deputies 
of the United States in a General Convention held at the city 
of Philadelphia, on the seventeenth day of Sei^tember, in the 
year of our Lord one thousand seven hundred and eighty-seven, 
have appi'oved, assented to, ratified, and confirmed, and by 
these presents do, in virtue of the power and authority to us 
given, for and in behalf of ourselves and our constituents, fully, 
freely, and entirely approve of, assent to, ratify, and confirm the 
said Constitution. 

Done in Convention, at Dover, this seventh day of December, 
in the year aforesaid, and in the year of the independence 
of the United States of America the twelfth. 
In testimony whereof, we have hereunto subscribed our 
names. 

Sussex County. Kent County. Newcastle County. 

John Ingraham, Nicholas Ridgely, James Latimer, President, 

John Jones, Richard Smith, James Black, 

WiUiara Moore, George Fruitt, John James, 

William Hall, Richard Bassett, Gunning Bedford, Sen., 

Thomas Laws, James Sykes, Kensey Johns, 

Isaac Cooper, Allen M'Lean, Thomas Watson, 
Woodman Storkley, Daniel Cummins, Sen., Solomon Maxwell, 

John Laws, Joseph Barker, Nicholas Way, 

Thomas Evans, Edward White, Thomas DufF, 

Israel Holland. George Maalove. Gunning Bedford, Jun. 
60 



78 



APPENDIX. 



. To all to iohom these Presents shall come, Greeting : 

I, Thomas Collins, president of the Delaware state, do hereby 
certify, that the above instrument of writing is a true copy of 
the original ratification of the Federal Constitution by the Con- 
vention of the Delaware state, which origin aL ratification is 
now in my possession. 

In testimony whereof, I have caused the seal of the Dela- 
[l. s.] ware state to be hereunto annexed. 

THOMAS COLLINS. 



PENNSYLVANIA.— December 12, 1V87. 

In the Name of the People op Pennsylvania. 

Be it known unto all men, that we, the delegates of the 
people of the commonwealth of Pennsylvania, in General Con- 
vention assembled, have assented to and ratified, and by these 
presents do, in the name and by the authority of the same 
people, and for ourselves, assent to and ratify the foregoing 
Constitution for the United States of America. Done in Con- 
vention at Philadelj)hia, the twelfth day of December, in the 
year of our Lord one thousand seven hundred and eighty-seven, 
and of the independence of the United States of America the 
twelfth. In witness whereof, we have hereunto subscribed our 

names. 

FREDEPJCK A. MUHLENBERG, Fresiclent. 



George Latimer, 
Benjamin Rash, 
Hilary Baker, 
James Wilson, 
Thomas M'Kean, 
To. Macpherson, 
John Himn, 
G-eorge Gray, 
Samuel Ashmead, 
Enoch Edwards, 
Henry Wynkoop, 
John Barclay, 
Thomas Yardley, 
Abraham Stout, 
Thomas Bull, 



Anthony Wayne, 
William Gibbons, 
Richard Downing, 
Thomas Cheney, 
John Hannum, 
Stephen Chambers, 
Robert Coleman, 
Sebastian Graff, 
John Hiibley, 
Jasper Yeates, 
Henry Slagle, 
Thomas Campbell, 
Thomas Hartley, 
David Grier, 
John Black, 



Benjamin Pedan, 
John Arndt, 
Stephen Balliat, 
Joseph Horsefield, 
David Dashler, 
William Wilson, 
John Boyd, 
Thomas Scott, 
John Nevill, 
John Alison, 
Jonathan Roberts, 
John Richards, 
James Morris, 
Timothy Pickering, 
Benjamin Elliott, 



Attest : 



James Casipbell, Secretary. 



NEW JERSEY.— December 18, 1787. 
In Convention op the State op New Jersey. 
Whereas a Convention of Delegates from the following 
states, viz., — New Hampshire, Massachusetts, Connecticut, New 



APPENDIX. 79 

York, New Jersey, Pennsylvania, Delaware, Maryland, Vir- 
ginia, North Carolina, South Carolina, and Georgia, — met at 
Philadelphia, for the purpose of deliberating, on, and forming, 
a Constitution for the United States of America, — ifinished their 
session on the 17th day of September last, and reported to 
Congress the form which they had agreed upon, in the words 
following viz. : [See the Constitution.'] 

And whereas Congress, on the 28th day of September last, 
unanimously did resolve, " That the said report, with the reso- 
lutions and letter accompanying the same, be transmitted to 
the several legislatures, in order to be submitted to a convention 
of delegates, chosen in each state by the people thereof, in con- 
formity to the resolves of the Convention made and provided 
in that case ;" 

And whereas the legislature of this state did, on the 29th day 
of October last, resolve in the words following, viz., " Resolved^ 
unanimously, That it be recommended to such of the inhabit- 
ants of this state as are entitled to vote for representatives in 
General Assembly, to meet in their respective counties on the 
foui'th Tuesday in November next, at the several places fixed 
by law for holding the annual elections, to choose three suitable 
persons to serve as delegates from each county in a state Con- 
vention, for the purposes hereinbefore mentioned, and that the 
same be conducted agreeably to the mode, and conformably 
with the rules and regulations, prescribed for conducting such 
elections ; 

" Resolved, unanimously, That the persons so elected to serve 
in state Convention, do assemble and meet together on the 
second Tuesday in December next, at Trenton, in the county 
of Hunterdon, then and there to take into consideration the 
aforesaid Constitution and if approved of by them, finally to 
ratify the same, in behalf and on the part of this state, and 
make report thereof to the United States in Congress assembled, 
in conformity with the resolutions thereto annexed. 

^^ Resolved, That the sherifis of the respective counties of this 
state shall be, and they are hereby, required to give as timely 
notice as may be, by advertisements, to the people of their 
counties, of the time place, and purpose of holding elections, as 
aforesaid." 

And whereas the legislature of this state did also, on the 1st 
day of November last, make and pass the following act, viz., 



80 APPENDIX. . 

" An Act to authorize the people of this state to meet in con- 
vention, deliberate upon, agree to, and ratify, the Constitution 
of the United States proposed by the late General Convention, 
— Be it enacted by the Council and General Assembly of this 
state, and it is hereby enacted by the authority of the same, 
that it shall and may be lawful for the people thereof, by their 
delegates, to meet in Convention to deliberate upon, and, if 
approved of by them, to ratify, the Constitution for the United 
States proposed by the General Convention held at Philadelphia, 
and every act, matter, and clause, therein contained, conform- 
edly to the resolutions of the legislature passed the 29th day 
of Octobei-, 1Y87, — any law, usage, or custom, to the contrary 
in any wise notwithstanding ;" 

Now be it known, that we, the delegates of the state of New 
Jersey, chosen by the people thereof, for the purpose aforesaid, 
having maturely deliberated on and considered the aforesaid 
proposed constitution, do hereby, for and on behalf of the people 
of the said state of New Jersey^ agree to, ratify, and confirm, the 
same and every part thereof. 

Done in Convention, by the unanimous consent of the mem- 
bers present, this 18th day of December, in the year of our 
Lord 1787, and of the independence of the United States of 
America the twelfth. 
In witness whereof, we have hereunto subscribed our names. 
JOHN STEVENS, President, 
and Delegate from the county of Hunterdon. 
County of Cape County of 

May, Jesse Hand, Middlesex. . .John ISTeilson, 

Jeremiah Eldridge, John Beatty, 

Matthew Willdin. Benjamin Manning. 

Hunterdon, . . .David Breai'ly, J/on??io?i</i,..Elisha Lawrence, 

Joshua Corshon. Samuel Breese, 

Morris, William Windes, William Crawford. 

William Woodhull, Somerset, . . . John AVitherspoon, 

John Jacob Faesch. Jacob R. Hardenberg, 

Cv-Triberland, . .DoMidi Potter, Frederick Frelinghuysen. 

Jonathan Bowen, Burlington,.. Thomas Reynolds, 

Eli Elmer. Geo. Anderson, 

Sussex, Robert Ogden, Joshua^ M. Wallace. 

Thomas Anderson, Gloucester, .Richard Howell, 

Robert Hoops. Andrew Hunter, 

Bergen, John Fell, Benjamin Whitall. 

Peter Zobriskie, Salem, Whitten Cripps, 

Cornelius Hennion. Edmund Wetherby. 

Essex, John Chetwood, 

Samuel Hay, Attest : 

David Crane. Samuel W. Stockton, ySecretery, 



APPENDIX. 81 

STATE OF GEORGIA— January 2, 1Y88. 
In Convention, Wednesday, January 2, 1788. 

To all to whom these presents shall come, Greeting : 

Whereas the foi-m of a Constitution for the government of 
the United States of America, was, on the 17th day of Septem- 
ber, 1787, agreed upon and reported to Congress by the deputies 
of the said United States convened in Philadelphia, which said 
Constitution is written in the words following, to wit : 

And whereas the United States in Congress assembled did, 
on the 28th day of September, 1787, resolve, unanimously, 
" That the said report, with the resolution and letter accom- 
panying the same, be transmitted to the several legislatures, in 
order to be submitted to a convention of delegates chosen in 
each State by the people thereof, in conformity to the resolves 
of the Convention made and provided in that case." 

And whereas the legislature of the State of Georgia did, on 
the 26th day of October, 1787, in pursuance of the above recited 
resolution of Congress, resolve, That a convention be elected on 
the day of the next general election, and in the same manner 
that representatives are elected ; and that the said Convention 
consist of not more than three members from each county ; and 
that the said Convention should meet at Augusta, on the 4th 
Tuesday in December then next, and, as soon thereafter as con- 
venient, proceed to consider the said report and resolutions, 
and to adopt or reject any part or the Avhole thereof. 

Now know ye, that we, the delegates of the people of the 
State of George, in convention met, pursuant to the resolutions 
of the legislature aforesaid, having taken into our serious con- 
sideration the said Constitution, have assented to, ratified, and 
adopted, and by these presents do, in virtue of the powers and 
authority to us given by the j^eople of the said State for that pur- 
pose, for and in behalf of ourselves and our constituents, fully 
and entirely assent to, ratify, and adopt, the said Constitution. 

Done in Convention, at Augusta, in the said State, on the 2d 
day of January, in the year of our Lord 1788, and of the 
independence of the United States the 12th. 

In witness whereof, we have hereunto subscribed our names. 

JOHN WERE AT, President, 
and delegate for the county of JRichmond. 



82 


APPENDIX. 




County of 




County of 




Chatham y. . , 


. . . W. Stepbens, 


Glynn, 


. . George Handley, 




Joseph Habersham. 




Christopher Hillary, 


Effingham, . . 


. . . Jenhirri Davis, 




J. Milton. 




N. Brownson. 


Camden, ..... 


, . . Henry Osborn, 


Burke, 


...Edward Telfair, 




James Seagrove, 




H. Todd. 




Jacob Weed. 


Richmond, . . , 


, . . William Few, 


Washington, . 


...Jared Irwin, 




James M'Niel. 




John Rutherford. 


Wilkes, 


. . . G-eo. Matthews, 
Flor. Sullivan, 


Greene, 


. . .Robert Christmas, 


? ■ • • • 




Thomas Daniel, 




John King. 




R. Middleton. 


Liberty, 


. . . James Powell,. 
John Elliot, 
James Maxwell. 







CONNECTICUT. — January 9, 1788. 
In the Name of the People of the State op Connecticut. 
We, the delegates of the people of said state, in general Con- 
vention assembled, pursuant to an act of the legislature in Octo- 
ber last, have assented to, and ratified, and by these presents do 
assent to, on the iVth day of September, A. D. 1787, for the 
United States, of America. 

Done in Convention, this 9th day of January, A. D. 1788. 
In witness whereof, we have hereunto set our hands. 

MATTHEW GRISWOLD, President. 



Jeremiah Wadsworth, 
Jesse Root, 
Isaac Lee, 
Selah Hart, 
Zebulon Peck, Jun., 
Elisha Pitkin, 
Erastur Wolcott, 
John Watson, 
John Treadwell, 
William Judd, 
Nathaniel Minor, 
Jonathan Sturges, 
Thaddeus Burr, 
Elisha Whittlesey, 
Joseph Moss White, 
Amos Mead, 
Amasa Learned, 
Samuel Huntington, 
Jedediah Huntington, 
Isaac Huntington, 
Robert Robbins, 
Daniel Foot, 
Eli Hyde, 

Joseph Woodbridge, 
Stephen Billings, 
Andrew Lee, 



Jabez Fitch, 
ISTehemiah Beardsley, 
James Potter, 
John Chandler, 
Isaac Burnham, 
John Wilder, 
Mark Prindle, 
Jedediah Hubbel, 
Aaron Austin, 
Samuel Canfield, 
Daniel Everitt, 
Hezekiah Fitch, 
Joshua Porter, 
Benjamin Hinma, 
Joseph Mosely, 
Wait Goodrich, 
Simeon Smith, 
Hendrick Dow, 
Seth Paine, 
Asa Witter, 
Moses Cleveland, 
Samson Howe, 
William Danielson, 
William Williams, 
James Bradford, 
Joshua Dunlap, 



John Curtiss, 
Asa Barnes, 
Stephen Mix Mitchell, 
John Chester, 
Oliver Ellsworth, 
Roger Newbury, 
Roger Sherman, 
Pierpont Edwards, 
Samuel Beach, 
Daniel Holbrook, 
John Holbrook, 
Gideon Buckingham, 
Lewis Mallet, Jun. 
Joseph Hopkins, 
John Welton, 
Richard Law, 
Robert M'Cune, 
Daniel Sherman, 
Samuel Orton, 
Asher Miller, 
Samuel H. Parsons, 
Ebenezer White, 
Hezekiah Goodrich, 
Dyer Throop, 
Jabez Chapman, 
Cornelius Higgins, 



APPENDIX. 



83 



William Noyes, 
Joshua Raymond, Jan., 
Jeremiah Halsey, 
Wheeler Colt, 
Charles Phelps, 
John Beach, 
Hezekiah Rogers, 
Lemuel Sanford, 
William Heron, 
Philip Burr Bradley, 
Nathan Dauchy, 
James Davenport, 
John Davenport, Jun., 
Wm. Samuel Johnson, 
Elisha Mills, 
Eliphalet Dyer, 
Jedediah Elderkin, 

State of Connecticut, ss. 

Hartford, January Ninth^ Anno Domini 1788. 
The foregoing ratification was agreed to, and signed as above, 
by one hundred and twenty-eight, and dissented to by forty 
delegates in convention, which is a majority of eighty-eight. 

Certified by MATTHEW GRISWOLD, President. 
Teste. Jedediah Strong, Secretary. 



Daniel Learned, 

Moses Campbell, 
Benjamin Dow, 
Oliver Woloott, 
Jedediah Strong, 
Moses Hawley, 
Charles Burrell, 
Nathan Hale, 
Daniel Miles, 
Asaph Hall, 
Epaphras Sheldon, 
Eleazer Curtiss, 
John Whittlesey, 
Dan. Math. Brinsmade, 
Thomas Fenn, 
David Smith, 



Hezekiah Brainard, 
Theophilus Morgan, 
Hezekiah Lane, 
William Hart, 
Samuel Shipman, 
Jeremiah West, 
Samuel Chapman, 
Ichabod Warner, 
Samuel Carver, 
Jeremiah Ripley, 
Ephraim Root, 
John Phelps, 
Isaac Foot, 
Abijah Sessions, 
Caleb Holt, 
Seth Crocker. 



COMMONWEALTPI OF MASSACHUSETTS. 

February 17, 1788. 
The Convention having impartially discussed, and fully con- 
sidered, the Constitution for the United States of America, 
reported to Congress by the Convention of Delegates from the 
United States of America, and submitted to us by a resolution 
of the General Court of the said Commonwealth, passed the 25th 
day of October last past, — and acknowledging, with grateful 
hearts, the goodness of the Supreme Ruler of the universe in 
affording the people of the United States, in the course of His 
providence, an opportunity, deliberately and peaceably, without 
fraud or surprise, of entering into an explicit and solemn com- 
pact with each other, by assenting to and ratifying a new Con- 
stitution, in order to form a more perfect union, establish justice, 
insure domestic tranquillity, provide for the common defense, 
promote the general welfare, and secure the blessings of liberty 
to themselves and their posterity — do, in the name and in 
behalf of the people of the commonwealth of Massachusetts, 
assent to and ratify the said Constitution for the United States of 
America. 



84 APPENDIX. 

And as it is the opinion of this Convention, that certain amend- 
ments and alterations in the said Constitution would remove the 
fears, and quiet the ajDprehensions, of many of the good people 
of this commonwealth, and more effectually guard against an 
undue administration of the federal government, the Conven- 
tion do therefore recommend that the follcAving alterations and 
provisions be introduced into the said Constitution : 

I. That it be explicitly declared that all powers not expressly 
delegated by the aforesaid Constitution are reserved to the sev- 
eral states, to be by them exercised. 

II. That there shall be one representative to every thirty 
thousand persons, according to the census mentioned in the Con- 
stitution, until the whole number of the representatives amounts 
to two hundred. 

III. That Congress do not exercise the powers vested in 
them by the 4th section of the 1st article, but in cases where a 
state shall neglect or refuse to make the regulations therein 
mentioned, or shall make regulations subversive of the rights of 
the people to a free and equal representation in Congress, agree- 
ably to the Constitution. 

IV. That Congress do not lay direct taxes but when the 
moneys arising from the impost and excise are insufficient for 
the public exigencies, nor then until Congress shall have first 
made a requisition upon the states to assess, levy, and pay, their 
respective proportions of such requisition, agreeably to the cen- 
sus fixed in the said Constitution, in such way and manner as 
the legislatures of the states shall think best ; and in such case 
if any state shall neglect or refuse to pay its proportion, pursu- 
ant to such requisition, then Congress may assess and levy such 
state's proportion together with interest thereon at the rate of 
six per cent per annum, from the time of payment prescribed in 
such requisition. 

V. That Congress erect no company of merchants with exclu- 
sive advantages of commerce. 

VI. That no person shall be tried for any crime by which he 
may incur an infamous punishment, or loss of life, until he be 
first indicted by a grand jury, except in such cases as may arise 
in the government and regulation of the land and naval forces. 

VII. The Supi-eme Judicial Federal Court shall have no juris- 
diction of causes between citizens of different States, unless the 
matter in dispute, whether it concerns the realty or personalty, 



APPENDIX. 85 

be of the value of three thousand dollars at the least ; nor shall 
the federal judicial powers extend to any actions between 
citizens of different States, where the matter in dispute, whether 
it concerns the realty or personalty, is not of the value of fifteen 
hundred dollars at least. 

VIII. In civil actions between citizens of different States, 
every issue of fact, arising in actions of common law, shall be 
tried by a jury, if the parties, or either of them, request it. 

IX. Congress shall at no time consent that any person, hold- 
ing an office of trust or profit under the United States, shall 
accept of a title of nobility, or any other title or office, from any 
king, prince, or foreign state. 

And the convention do, in the name and in behalf of the 
people of this commonwealth, enjoin it upon their representa- 
tives in Congress, at all times, until the alterations and provi- 
sions aforesaid have been considered, agreeably to the 5th 
article of the said Constitution, to exert all their influence, and 
use all reasonable and legal methods, to obtain a ratification of 
the said alterations and provisions, in such manner as is pro- 
vided in the said article. 

And that the United States in Congress assembled may have 
due notice of the assent and ratification of the said Constitu- 
tion by this Convention, it is Resolved, That the assent and 
ratification aforesaid be engrossed on parchment, together with 
the recommendation and injunction aforesaid, and with this 
resolution ; and that his excellency, John Hancock, Esq., presi- 
dent, and the Hon. William Cush'ing, Esq., vice-president of 
this Convention, transmit the same, countersigned by the secre- 
tary of the Convention, under their hands and seals, to the 
United States in Congress assembled. 

JOHN" HANCOCK, President. 
WILLIAM CUSHING, Vice-President. 

George Richards Minot, Secretary. 

Pursuant to the resolution aforesaid, we, the president and 
vice-president above named, do hereby transmit to the United 
States in Congress assembled the same resolution, with the 
above assent and ratification of the Constitution aforesaid, for 
the United States, and the recommendation and injunction 
above specified. 

In witness whereof, we have hereunto set our hands and seals, 

at Boston, in the commonwealth aforesaid, this 7th day of 
61 



86 



APPENDIX. 



February, Anno Domini 1788, and in the twelftli year of 
the independence of the United States of America. 

JOHN" HANCOCK, President. [l. s.] 

"WM. GUSHING, Vice-President, [l. s.] 



MARYLAND.— Apkil 28,* 1788. 

In Convkntion of the Delegates op the People of the 
State of Maetland, April 28, 1788. 

. "We, the delegates of the people of the State of Maryland, 
having fully considered the Constitution of the United States 
of America, reported to Congress by the Convention of deputies 
from the United States of America, held in Philadelphia, on the 
l7th day of September, in the year 1787, of which the annexed 
is a copy, and submitted to us by a resolution of the General 
Assembly of Maryland, in November session, 1787, do, for our- 
selves, and in the name and on the behalf of the people of this 
State, assent to and ratify the said Constitution. 

In witness whereof, we have hereunto subscribed our names. 

GEO. PLATER, President. 



Eichard Barnes, 
Charles Chilton, 
N. Lewis Sewall, 
William Til.o-hman, 
Donalson Yeates, 
Isaac Perkins, 
John Gale, 
N. Hammond, 
Daniel Sullivan, 
James Shaw, 
Jos. Gilpin, 
H. HoUingsworth, 
John Done, 
Thomas Johnson, 
Thomas S. Lee, 
Peter Chaille, 
James Martin, 
William Morris, 
J. Richardson, 
William Richardson, 
Matt. Driver, 



Attest. — Wm. Harwood, Clerh. 



Richard Potts, 
Abraham Few, 
William Paca, 
William Granger, 
Joseph Wilkinson, 
Charles Graham, 
John Cheslea, Jan., 
W. Smith, 
G. R. Brown, 
J. Parnham, 
Zeph. Turner, 
Michael Jenifer Stone, 
R. Goldsborongh, Jun., 
Edward Lloyd, 
John Stevens, 
Peter Edmonson, 
James M' Henry, 
John Coulter, 
Thomas Spriirg, 
John Stull, 
Moses Rawlings, 



George Gale, 
Henry Waggamau, 
John Stewart, 
James Gordon Heron, 
Samuel Evans, 
Fielder Bowie, 
Osb. Sprigg, 
Benjamin Hall, 
George Digges, 
Nicholas Carrole, 
A. C. Hanson, 
James Tilghman, 
John Seney, 
James HoUyday, 
William Hemsley, 
Henry Shryock, 
Thomas Cramphin, 
Ricliard Thomas, 
William Deakins, Jun., 
Benj. Edwards. 



STATE OF SOUTH CAROLINA.— May 23, 1788. 

In Convention of the people of the State of South Carolina, 
by their representatives held in the city of Charleston, on Mon- 
day the 12th day of May, and continued by divers adjournments 
to Friday, the 23d day of May, Anno Domini 1788, and in the 
12th yeai* of the independence of the United States of America. 



APPENDIX. 87 

The Convention, having maturely considered the Constitu- 
tion, or form of government, reported to Congress by the Con- 
vention of Delegates from the United States of America, and 
submitted to them by a resolution of the legislature of this 
State, passed the 17th and 18th days of February last, in order 
to form a more perfect union, establish justice, insure domestic 
tranquillity, provide for the common defense, promote the gen- 
eral welfare, and secure the blessings of liberty to the people 
of the said United States, and their posterity, — Do, in the 
name and behalf of the people of this State, hereby assent 
to and ratify the said Constitution. 

Done in Convention, the 23d day of May, in the year of 
our Lord 1788, and of the independence of the United States 
of America the twelfth. 

THOMAS PINCKNEY, President, [l. s.] 
Attest. John Sandford Dakt, Secretary, [l. s.] 

And whereas it is essential to the preservation of the rights 
reserved to the sevei'al States, and the freedom of the people, 
under the operations of a general government, that the right of 
prescribing the manner, time, and places, of holding the elec- 
tions to the federal legislature, should be forever inseparably 
annexed to the sovereignty of the several States, — This Conven- 
tion doth declare, that the same ought to remain, to all poster- 
ity, a perpetual and fundamental right in the local, exclusive of 
the interference of the general government, except in cases 
where the legislatures of the States shall refuse or neglect to 
perform and fulfill the same, according to the tenor of the said 
Constitution. 

This Convention doth also declare, that no section or j)ara- 
graph of the said Constitution warrants a construction that the 
States do not attain every power not expressly relinquished by 
them, and vested in the general government of tlie Union. 

Hesolved, That the general govei-nment of the United States 
ought never to impose dii'ect taxes, but where the moneys 
arising from the duties, imports, and excises, are insufficient 
for the public exigencies, nor then until Congress shall have 
made a requisition upon the States to assess, levy, and pay, their 
respective proportions of such requisitions ; and in case any 
State shall neglect or refuse to pay its proportion, pursuant to 
such requisition, then Congress may assess and levy such state's 
proportion, together with interest theroon, at the rate of six 



88 APPENDIX. 

per centum per annum from the time of payment prescrilbed 
by such requisition. 

Mesolved, That the third section of the sixth article ought to 
be amended, by inserting the word " other" between the words 
" no" and " religious." 

JResolvedy That it be a standing instruction to all such dele- 
gates as may hereafter be elected to represent this State in the 
general government, to exert their utmost abilities and influ- 
ence to effect an alteration of the Constitution, conformably to 
the aforegoing resolutions. 

Done in Convention, the 23d day of May in the year of our 
Lord 1V88, and of the independence of the United States 
of America the twelfth. 

THOMAS PINCKNEY, President, [l. s.] 
Attest. John. Sandford Dart, Secretary, [l. s.] 



STATE OF NEW HAMPSHIRE.— June 21, 1788. 
In Convention of the Delegates op the People of the 
State of New Hampshire, June the 21st 1788. 
The Convention having impartially discussed and fully con- 
sidered the Constitution for the United States of America, 
reported to Congress by the Convention or Delegates from the 
United States of America, and submitted to us by a resolution 
of the General Court of said State, passed the 14th day of 
December last past, and acknowledging with grateful hearts 
the goodness of the Supreme Ruler of the universe in afford- 
ing the peoj)le of the United States, in the course of His provi- 
dence, an opportunity, deliberately and peaceably, without 
fraud or surpi-ise, of entering into an explicit and solemn com- 
pact with each other, by assenting to and ratifying a new Con- 
stitution, in order to form a more perfect Union, establish jus- 
tice, insure domestic tranquillity, provide for the common defense, 
promote the general welfare, and secure the blessings of liberty 
to themselves and their posterity, — Do, in the name and behalf 
of the people of the State of New Hampshire, assent to and ratify 
the said Constitution for the United States of America. And as 
it is the opinion of this Convention, that certain amendments and 
alterations in the said Constitution would remove the fears 
and quiet the apprehensions of many of the good people of this 
State, and more effectually guard against an undue administra- 
ton of the federal government, — The Convention do therefore , 



APPENDIX. 89 

recommend that the following alterations and provisions be 
introduced into the said Constitution : 

I. That it be explicitly declared that all powers not expressly 
and particularly delegated by the aforesaid Constitution are 
reserved to the several states, to be by them exercised. 

II. That tliere shall be one representative to every thirty 
thousand persons, accoi'ding to the census mentioned in the 
Constitution, until the whole number of representatives amount 
to two hundred. 

III. That Congress do not exercise the powers vested in them 
by the fourth section of the first article but in cases when a 
State shall neglect or refuse to make the regulations therein 
mentioned, or shall make regulations subversive of the rights 
of the people to a free and equal representation in Congress ; 
nor shall Congress in any case make regulations contrary to 
a free and equal representation. 

IV. That Congress do not. lay direct tax.es but when the 
moneys arising from impost, excise, and their other resources, are 
insufficient for the public exigencies, nor then, until Congress 
shall have first made a requisition upon the States to assess, 
levy, and pay, their respective proportions of such requisition, 
agreeably to the census fixed in the said Constitution, in such 
way and manner as the legislature of the State shall think 
best ; and in such case, if any State shall neglect, then Congress 
may assess and levy such State's proportion, together with the 
interest thereon, at the rate of six per cent per annum, from 
the time of payment prescribed in such requisition. 

V. That Congress shall erect no company of merchants with 
exclusive advantages of commerce. 

VI. That no person shall be tried for any crime by which he 
may incur an infamous punishment, or loss of life, until he first 
be indicted by a grand jury, except in such cases as may arise 
in the government and regulation of the land and naval forces. 

VII. All common law cases between citizens of different 
States shall be commenced in the common law courts of the 
respective States : and no appeal shall be allowed to the federal 
court, in such cases, unless the sum or value of the thing in 
controversy amount to three thousand dollars. 

VIII. In civil actions between citizens of different States, 
every issue of fact, arising in actions at common law, shall 
be tried by jury, if the parties, or either of them, request it. 



90 APPENDIX. 

IX. Congress shall at no time consent that any pei'son hold- 
ing an office of trust oi* profit under the United States, shall 
accept any title of nobility, or any other title or office, from any 
king, prince or foreign state, 

X. That no standing army shall be kept up in time of peace, 
unless with tlie consent of three-fourths of the members of each 
branch of Congress ; nor shall soldiers, in time of peace, be 
quartered upon private houses, without the consent of the 
owners. 

XL Congress shall make no laws touching religion, or to 
infringe the rights of conscience. 

XII. Congress shall never disarm any citizen, unless such as 
are or have been in actual rebellion. 

And the Convention do, in the name and in behalf of the peo- 
ple of this State, enjoin it upon their representatives in Congress, 
at all times until the alterations and provisions aforesaid have 
been considered agreeably to the fifth article of the said Con- 
stitution, to exert all their influence, and use all reasonable 
and legal methods, to obtain a ratification of the said altera- 
tions and provisions, in such manner as is provided in the 
article. 

And that the United States in Congress assembled may have 
due notice of the assent and ratification of the said Constitution 
by this Convention, it is Hesolved, That the assent and ratifica- 
tion aforesaid be engrossed on parchment, together Avith the 
recommendation and injunction aforesaid, and with this reso- 
lution ; and that John Sullivan, Esq., president of the Conven- 
tion, and John Langdon, Esq., president of the State, transmit 
the same, countersigned by the secretary of Convention, 
and the secretary of State, under their hands and seals, to the 
United States in Congress assembled. 

JOHN SULLIVAN, Fres. of the Conv. [l. s.] 
JOHN LANGDON, Pres. of the State, [l. s.] 

"R ri i J'^HX Calf, Secretary of Convention. 
y 01 e . I Joseph Pearson, Secretary of State. 



VIRGINIA.— to wit.— JuxE 26, 1788. 

"We, the delegates of the people of Virginia, duly elected in 
pursuance of a recommendation from the General Assembly, 
and now met in Convention, having fully and freely investigated 
and discussed the proceedings of the Federal Convention, and 



APPENDIX. 91 

being prepared as well as the most mature deliberation hath 
enabled us, to decide thereon, — Do, in the name and in behalf 
of the people of Virginia, declare and make known, that the 
l^owers granted under the Constitution, being derived from the 
people of the United States, may be resumed by them, when- 
soever the same shall be perverted to their injury or oppres- 
sion, and that every power not granted thereby remains with 
them, and at their will ; that, therefore, no right, of any 
denomination, can be canceled, abridged, restrained, or mod- 
ified, by the Congress, by the Senate or House of Representa- 
tives, acting in any capacity, by the President, or any depart- 
ment or officer of the United States, except in those instances 
in which power is given by the Constitution for those purposes ; 
and that, among other essential rights, the liberty of conscience, 
and of the press, cannot be canceled, abridged, restrained, or 
modified, by any authority of the United States. With these 
impressions, with a solemn appeal to the Searcher of all hearts 
for the purity of our intentions, and under the conviction that 
whatsoever imperfections may exist in the Constitution ought 
rather to be examined in the mode prescribed therein, than to 
bring the Union into danger by a delay with a hope of obtain- 
ing amendments previous to the ratifications, — We, the said 
delegates, in the name and in behalf of the people of Virginia, 
do, by these presents, assent to and ratify the Constitution 
recommended, on the 17th day of September, 1787, by the 
Federal Convention, for the government of the United States, 
hereby announcing to all those whom it may concern, that the 
said Constitution is binding upon the said people, according to 
an authentic copy hereto annexed, in the words following. 
[See Constitution.] 

Done in Convention, this 26th day of June, 1788. 

By order of the Convention. 

EDM. PEK^DLETON, President, [l. s.] 

[See Debates in Convention, where the Declaration or 
Sill of Rights, and Amendments, are printed at large.] 

United States In Congress Assembled. 

Wednesday, Jidy 2, 1788. 
The State of New Hampshire having ratified this Constitu- 
tion, transmitted to them by the act of the 28th of Se2)tember 
last, and transmitted to Congress their ratification, and the 



92 APPENDIX. 

same being read, the president reminded Congress that this 
was the ninth ratification transmitted and laid before them ; 
whereupon, — 

On motion of Mr. Clarke, seconded by Mr. Edwards, — 
Ordered, That the ratifications of the Constitution of the 
United States, transmitted to Congress, be referred to a com- 
mittee to examine the same and report an act to Congress for 
putting the said constitution into operation, in pursuance of the 
resolutions of the late Federal Convention. 

On the question to agree to this order, the yeas and nays 
being required by Mr. Yates : 

JVew; Hampshire, Mr. Gilman, Ay. \ . 

Mr. Wigate, Ay. f ^^• 

Massachusetts, Mr. Dane, Ay. ) . 

Mr. Otis, Ay.l^y- 

Rhode Island, Mr. Arnold, ) Fxrn«Pd 

Mr. Hazard, ^ J^xcusea. 

Connecticut, Mr. Huntington, . . .Ay. \ . 

Mr. Edwards, . .Ay. \ ^' 

New Yorh, Mr. L'Hommedieu, .Ay.) -p.- ■■, ■, 

Mr. Yates, No. \ ^*^*«^'^- 

New Jersey Mr. Clarke, Ay. ) 

Mr. Elmer, Ay. [■ Ay. 

Mr. Dayton, Ay. ) 

Pennsylvania, Mr. Bingham, Ay. ( , 

Mr. Read, Ay. i ^^Z- 

Maryland, Mr. Con tee, Ay. 

Virginia Mr. Griffin, Ay. ) 

■ Mr. Carrington,. . . .Ay. > Ay. 

Mr. Brown, Ay. ) 

South Carolina, Mr. Huger, Ay. ^ 

Mr. Parker, Ay. > Ay. 

Mr. Tucker, Ay. ) 

Georgia, Mr. Few, -^V- I a„ 

Mr. Baldwin ^2/. i ^' 

So it passed in the affirmative. 



STATE OF NEW YORK.— July 26, 1V88. 

We, the delegates of the people of the state of New York, 
duly elected and met in Convention, having maturely considered 
the Constitution for the United States of America, agreed to 
on the lYth day of September, in the year IVSV, by the Conven- 
tion then assembled at Philadelphia, in the commonwealth of 
Pennsylvania (a copy whereof precedes these presents), and 
having also seriously and deliberately considered the present 
situation of the United States, — Do declare and make known, — 

That all power is originally vested in, and consequently 



APPENDIX. 93 

derived from, the people, and that government is instituted by 
them for their common interest, protection, and security. 

That the enjoyment of life, liberty, and the pursuit of happi- 
ness, are essential rights, which every government ought to 
respect and preserve. 

That the powers of government may be reassumed by the 
people whensoever it shall become necessary to their happiness ; 
that every power, jurisdiction, and right, ■sVhich is not by the 
said Constitution clearly delegated to the Congress of the 
United States, or the departments of the government thereof, 
remains to the people of the several states, or to their respective 
state governments, to whom they may have granted the same ; 
and that those clauses in the said Constitution, which declare 
that Congress shall not have or exercise certain powers, do not 
imply that Congress is entitled to any powers not given by the 
said Constitution ; but such clauses are to be construed either 
as exceptions to certain specified powers, or as inserted merely 
for greater caution. 

That the people have an equal, natural, and unalienable right 
freely and peaceably to exercise their religion, according to the 
dictates of conscience ; and that no religious sect or society 
ought to be favored or established by law in preference to 
others. 

That the people have a right to keep and bear arms ; that a 
well-regulated militia, including the body of the people capable 
of hearing arms, is the proper, natural, and safe defense of a 
free state. 

That the militia should not be subject to martial law, except 
in time of war, rebellion, or insurrection. 

That standing armies, in time of peace, are dangerous to 
liberty, and ought not to be kept up, except in cases of neces- 
sity ; and that at all times the military should be under strict 
subordination to the civil power. 

That, in time of peace, no soldier ought to be quartered in 
any house without the consent of the owner, and in time of 
war only by the civil magistrate, in such manner as the laws 
may direct. 

That no person ought to be taken, imprisoned, or disseized of 
his freehold, or be exiled, or deprived of his privileges, fran- 
cliises, life, liberty, or property, but by due process of law. 

That no person ought to be put twice in jeopai'dy of life or 
62 



94 APPENDIX. 

limb, for one and the same offense ; nor, tmless in case of 
impeachment, be punished more than once for the same offense. 

That every person restrained of his liberty is entitled to an 
inquiry into the lawfulness of such restraint, and to a removal 
thereof if unlawful ; and that such inquiry or removal ought not 
to be denied or delayed, except when, on account of public 
danger, the Congress shall suspend the privilege of the writ of 
habeas corpus. 

That excessive bail ought not to be required, nor excessive 
fines imposed, nor cruel or unusual punishments inflicted. 

That (except in the government of the land and naval forces, 
and of the militia when in actual service, and in cases of 
impeachment) a presentment or indictment by a grand jury 
ought to be observed as a necessary preliminary to the trial of 
all crimes cognizable by the judiciary of the United States ; 
and such trial should be speedy, public, and by an impartial 
jury of the county where the crime was committed ; and that 
no person can be found guilty without the unanimous consent 
of such jury. But in cases of crimes not committed within 
any county of any of the United States, and in cases of crimes 
committed within any county in which a general insurrection 
may prevail, or which may be in the possession of a foreign 
enemy, the inquiry and trial may be in such county as the 
Congress shall by law direct ; which county, in the two cases 
last mentioned, should be as near as conveniently may be to that 
county in which the ci'ime may have been committed ; — and 
that, in all criminal prosecutions, the accused ought to be 
informed of the cause and nature of his accusation, to be con- 
fronted with his accusers and the witnesses against him, to have 
the means of producing his witnesses, and the assistance of 
counsel for his defense ; and should not be compelled to give 
evidence against himself. 

That the trial by jury, in the extent that it obtains by the 
common law of England, is one of the greatest securities to the 
rights of a free people, and ought to remain inviolate. 

That every freeman has a right to be secure from all imrea- 
sonable searches and seizures of his person, his papers, or his 
property ; and therefore, that all warrants to search suspected 
places, or seize any freeman, his papers, or property, without 
information, upon oath or affirmation, of sufficient cause, ai'e 
grievous and oppressive ; and that all general warrants (or such 



APPENDIX. 95 

in which the place or person suspected are not particularly- 
designated) are dangerous, and ought not to be granted. 

That the people have a right peaceably to assemble together 
to consult for their common good, or to instruct their represen- 
tatives, and that every person has a right to petition or apply 
to the legislature for redress of grievances. 

That the freedom of the press ought not to be violated or 
restrained. 

That there should be, once in four years, an election of the 
President and Vice-President, so that no officer, who may be 
appointed by the Congress to act as President, in case of the 
removal, death, resignation, or inability, of the President and 
Vice-President, can in any case continue to act beyond the ter- 
mination of the period for which the last President and Vice- 
President were elected. 

That nothing contained in the said Constitution is to be con- 
strued to prevent the legislature of any state from passing laws 
at its discretion, from time to time, to divide such state into 
convenient districts, and to apportion its representatives to and 
amongst such districts. 

That the prohibition pontained in the said Constitution, 
against ex post facto laws, extends only to laws concerning 
crimes. 

That all appeals in causes determinable according to the 
course of common law, ought to be by writ of error, and not 
otherwise. 

That the judicial power of the United States, in cases in 
which a State may be a party, does not extend to criminal pros- 
ecutions, or to authorize any suit by any person against a 
State. 

That the judicial power of the United States, as to contro- 
versies between citizens of the same State, claiming lands under 
grants from different States, is not to be construed to extend to 
any other controversies between them, except those which 
relate to such lands, so claimed, under grants of different States. 

That the jurisdiction of the Supreme Court of the United 
States, or of any other court to be instituted by the Congress, is 
not in any case to be increased, enlarged, or extended, by any 
faction, collusion, or mere suggestion ; and that no treaty is to be 
construed so to operate as to alter the constitution of any State. 
Under these impressions, and declaring that the rights afore- 



96 APPENDIX. 

said cannot be abridged or violated and that the explanations 
•aforesaid are consistent with the said Constitution, and in confi- 
dence that the amendments which shall have been proposed to 
the said Constitution will receive an early and mature considera- 
tion, — We, the said delegates, in the name and in the behalf of 
the people of the State of New York, do, by these presents, 
assent to and ratify the said Constitution. In full confidence, 
nevertheless, that, until a convention shall be called and con- 
vened for proposing amendments to the said Constitution, the 
militia of this State will not be continued in service out of this 
State, for a longer term than six weeks, without the consent of 
the legislature thereof; that the Congress will not make or alter 
any regulation in this State, respecting the times, places and 
manner, of holding elections for senators or representatives, 
unless the legislature of this State shall neglect or refuse to 
make laws or regulations for the purpose, or from any circum- 
stance be incapable of making the same; and that, in those 
cases, such power will only be exercised until the legislature of 
this State shall make provision in the premises; that no excise 
will be imposed on any article of the growth, production, or 
manufacture of the United States, or any of them, within this 
State, ardent spirits excepted ; and the Congress will not lay 
direct taxes within this State, but when the moneys arising 
from the impost and excise shall be insufficient for the public 
exigencies, nor then, until Congress shall first have made a 
requisition upon this State to assess, levy, and pay the amount 
of such requisition, made agreeably to the census fixed in the 
said Constitution, in such way and manner as the legislature of 
this State shall judge best ; but that in such case, if the State 
shall neglect or refuse to pay its proportion, pursuant to such 
requisition, then the Congress may assess and levy this State's 
proportion, together with intei'est, at the rate of six per centum 
per annum, from the time at which the same was required to be 
paid. 

Done in Convention, at Poughkeepsie, in the county of 
Dutchess, in the State of New York, the 26th day of July, 
in the year of our Lord 1*788. 

By order of the Convention. 

GEO. CLINTON, President. 

Attested : John M'Kessok, ) ^,,^,^^^,-,,. 
A. B. BankeEj j 



APPENDIX. 97 

And the Convention do, in the name and behalf of the people 
of the State of New York, enjoin it upon their representatives in * 
Congress to exert all their influence, and use all reasonable 
means, to obtain a ratification of the following amendments to 
the said Constitution, in the manner prescribed therein ; and in 
all laws to be passed by the Congress, in the mean time, to con- 
form to the spirit of the said amendments, as far as the Consti- 
tution will admit. 

That there shall be one representative for every thirty thou- 
sand inhabitants, according to the enumeration or census men- 
tioned in the Constitution, until the whole number of represen- 
tatives amounts to two hundred, after which that number shall 
be continued or increased, but not diminished, as the Congress 
shall direct, and according to such ratio as the Congress shall 
fix, in conformity to the rule prescribed for the apportionment 
of representatives and direct taxes. 

That the Congress do not impose any excise on any article 
(ardent spirits excepted) of the growth, production, or manu- 
facture of the United States, or any of them. 

That Congress do not lay direct taxes but when the moneys 
arising from the impost and excise shall be insufiicient for the 
public exigencies, nor then, until Congress shall first have made 
a requisition upon the States to assess, levy, and pay, their 
respective proportions of such requisition, agreeably to the 
census fixed in the said Constitution, in such way and manner 
as the legislatures of the respective States shall judge best ; and 
in such case, if any State shall neglect or refuse to pay its pro- 
portion, pursuant to such requisition, then Congress may assess 
and levy such State's proportion, together with interest at tlie 
rate of six per centum per annum, from the time of payment 
prescribed in such requisition. 

That the Congress shall not make or alter any regulation, in 
any State, respecting the times, places, and manner, of holding 
elections for senators and representatives, unless the legislature 
of such State shall neglect or refuse to make laws and reo^ula- 
tions for the purpose, or from any circumstance be incapable of 
making the same, and then only until the legislature of such 
State shall make provision in the premises ; provided, that Con- 
gress may prescribe the time for the election of representatives. 

That no person, except natural-born citizens, or such as were 
citizens on or before the 4th day of July, 1776, or such as held 



98 APPENDIX. 

commissions under the United States during the war, and have 
'at any time since. the 4th day of July, IIIQ, become citizens of 
one or other of the United States, and who shall be freeholders, 
shall be eligible to the places of President, Vice-President, or 
members of either house of the Congress of the United States. 

That the Congress do not grant monopolies, or erect any 
company with exclusive advantages of commerce. 

That no standing army or regular troops shall be raised, or 
kept up, in time of peace, without the consent of two thirds of 
the senators and representatives present in each house. 

That no money be borrowed on the credit of the United 
States without the assent of two thirds of the senators and 
representatives present in each house. 

That the Congress shall not declare war without the concur- 
rence of two-thirds of the senators and representatives present 
in each house. 

That the privilege of the habeas corpus shall not, by any law, 
be suspended for a longer term than six months, or until twenty 
days after the meeting of the Congress next following the pass- 
ing the act for such suspension. 

That the right of Congress to exercise exclusive legislation 
over such district, not exceeding ten miles square, as may, by 
cession of a particular State, and the acceptance of Congress, 
become the seat of government of the United States, shall not 
be so exercised as to exempt the inhabitants of such district 
from paying the like taxes, imposts, duties, and excises, as shall 
be imposed on the other inhabitants of the State in which such 
district may be ; and that no person shall be privileged within 
the said district from arrest for crimes committed, or debts con- 
tracted, out of the said district. 

That the right of exclusive legislation, with respect to such 
places as may be purchased for the erection of forts, magazines, 
arsenals, dock-yards, and other needful buildings, shall not 
authorize the Congress to make any law to prevent the laws of 
the States, respectively, in which they may be, from extending 
to such places in all civil and criminal matters, except as to 
such persons as shall be in the service of the United States ; nor 
to them with respect to crimes committed without such places. 

That the compensation for the senators and representatives 
be ascertained by standing laws ; and that no alteration of the 
existing rate of compensation shall operate for the benefit of the 



APPENDIX. 99 

representatives until after a subsequent election shall have 
been had. 

That the Journals of the Congress shall be published at least 
once a year, with the exception of such parts, relating to treaties 
or military operations, as, in the judgment of either house, shall 
require secrecy ; and that both houses of Congress shall always 
keep their doors open during their sessions, unless the business 
may, in their opinion, require secrecy. That the yeas and nays 
shall be entered on the Journals Avhenever two members in 
either house may require it. 

That no capitation tax shall ever be laid by Congress. 

That no person be eligible as a senator for more than six 
years in any term of twelve years ; and that the legislatures of 
the respective States may recall their senators, or either of them, 
and elect others in their stead, to serve the remainder of the 
time for which the senators so recalled were appointed. 

That no senator or representative shall, during the time for 
which he was elected, be appointed to any office under the 
authority of the United States. 

That the authority given to the executives of the States to 
fill up the vacancies of senators be abolished, and that such 
vacancies be filled by the respective legislatures. 

That the power of Congress to pass uniform laws concerning 
bankruptcy shall only extend to merchants and other traders ; 
and the States, respectively, may pass laws for the relief of 
other insolvent debtors. 

That no person shall be eligible to the office of President of 
the United States a third time. 

That the executive shall not grant pardons for treason, unless 
with the consent of the Congress ; but may, at his discretion, 
grant reprieves to persons convicted of treason, until their cases 
can be laid before Congress. 

That the President, or person exercising his powers for the 
time being, shall not command an army in the field in person, 
without the previous desire of the Congress. 

That all letters patent, commissions, j^ardons, writs, and pro- 
cesses of the United States, shall run in the name of the people 
of the United States, and be tested in the name of the President 
of the United States, or the person exercising his powers for 
the time being, or the first judge of the court out of which the 
same shall issue, as the case may be. 



100 APPENDIX. 

That the Congress shall not constitute, ordain, or establish, any 
tribunals of inferior courts, with any other than appellate juris- 
diction, except such as may be necessary for the trial of cases of 
admiralty and mai'itime jurisdiction, and for the trial of piracies 
and felonies committed on the high seas ; and in all other cases 
to which the judicial power of the United States extends, and 
in which the Supreme Court of the United States has not orig- 
inal jurisdiction, the causes shall be heard, tried, and deter- 
mined, in some one of the State Courts, with the right of ajDpeal 
to the Supreme Court of the United States, or other proper tribu- 
nal, to be established for that purpose by the Congress, with 
such exceptions, and under such regulations, as the Congress 
shall make. 

That the court for the trial of impeachments shall consist of the 
Senate, the Judges of the Supreme Court of the United States, 
and the first or senior judge, for the time being, of the highest 
court of general and ordinary common-law jurisdiction in each 
State ; that the Congress shall, by standing laws, designate the 
courts in the respective States answering this description, and, in 
States having no courts exactly answering this description, 
shall designate some other court, preferring such, if any there 
be, whose judge or judges may hold their places during good 
behavior ; provided, that no more than one judge, other than 
Judges of the Supreme Court of the United States, shall come 
from one State. 

That the Congress be authorized to pass laws for compensa- 
ting the judges for such services, and for compelling their attend- 
ance ; and that a majority, at least of the said judges shall be 
requisite to constitute the said court. That no person impeached 
shall sit as a member thereof; that each member shall, previous 
to the entering upon any trial, take an oath or affirmation hon- 
estly and impartially to hear and determine the cause ; and that 
a majority of the members present shall be necessary to a con- 
viction. 

That persons aggrieved by any judgment, sentence or decree 
of the Supreme Court of the United States, in any cause in 
which that court has original jurisdiction, with such excep- 
tions, and under such regulations, as the Congress shall make 
concerning the same, shall, upon application, have a commis- 
sion, to be issued by the President of the United States to such 
men learned in the law as he shall nominate, and by and with 



APPENDIX. 101 

the advice and consent of the Senate appoint not less than 
seven, authorizing such commissioners, or any seven or more 
of them, to correct the errors in such judgment, or to review 
such sentence and decree, as the case may be, and to do justice 
to the parties in the premises. 

That no judge of the Supreme Court of the United States 
shall hold any other office under the United States, or any of 
them. 

That the judicial power of the United States shall extend to 
no controversies respecting land, unless it relate to claims of 
territory or jurisdiction between states, and individuals under 
the grants of different States. 

That the militia of any state shall not be compelled to serve 
without the limits of the State, for a longer term than six weeks, 
without the consent of the legislature thereof. 

That the Avords loithout the cofisent of the Congress, in the 
seventh clause of the ninth section of the first article of the 
Constitution, be expunged. 

That the senators and representatives, and all executive and 
judicial officers of the United States, shall be bound by oath or 
affirmation not to infringe or violate the constitution or I'ights 
of tlie respective States. 

That the legislatures of the respective States may make pro- 
vision, by law, that the electors of the election districts, to be 
by them appointed, shall choose a citizen of the United States, 
who shall have been an inhabitant of such district for the term 
of one year immediately preceding the time of his election, for 
one of the representatives of such State. 

Done in Convention, at Poughkeepsie, in the county of Dutch- 
ess, in the State of New York, the 26th day of July, in 
the year of our Lord ] V88. 



By order of the Convention. 



John M'Kesson, 



GEO. CLINTON, President. 



Attested: TbTb.' B^nkee'^' } Secretaries. 



STATE OF NORTH CAROLINA.— August 1, 1788. 

In Convention, August 1, 1788. 
JResolvcd, that a declaration of rights, nsserting and securing 
from encroachments the great principles of civil and religious 
liberty, and the unalienable rights of the people, together with 
6a 



102 APPENDIX. 

amendments to the most ambiguous and exceptionable parts of 
the said Constitution of government, ought to be laid before 
Congress, and the convention of the States that shall or may be 
called for the purpose of amending the said Constitution, for 
their said consideration, previous to the ratification of the Con- 
stitution aforesaid on the part of the State of North Carolina. 

SAM. JOHNSON. 
By order. J. Hunt, Secretary. 

On the 14th of July, 1788, the committee reported an act for 
putting the constitution into operation, which was debated until 
the 13th of September of the same year, when the following 
resolution was adopted : 

" Whereas the Convention assembled in Philadelphia, pur- 
suant to the resolution of Congress of the 21st of February, 
1787, did, on the 17th of September, in the same year, report to 
the United States in Congress assembled a Constitution for the 
people of the United States ; whereupon Congress, on the 28th 
of the same September, did resolve, unanimously, ' That the 
said rej)ort, with the resolutions and letter accompanying 
the same, be transmitted to the several legislatures, in order to 
be submitted to a convention of delegates, chosen in each state 
by the people thereof, in conformity to the resolves of the Con- 
vention made and provided in that case ;' and whereas the 
Constitution so reported by the Convention, and by Congress 
transmitted to the several legislatures, has been ratified in the 
manner therein declared to be sufficient for the establishment 
of the same, and such ratifications, duly authenticated, have 
been received by Congress, and are filed in the office of the 
secretary ; therefore, — 

" Mesolved, That the first Wednesday in January next be 
the day for appointing electors in the several states which, 
before the said day, shall have ratified the said Constitution ; 
that the first Wednesday in February next be the day for the 
electors to assemble in their respective states, and vote for a 
President ; and that the first Wednesday in March next be the 
time, and the present seat of Congress the place, for com- 
mencing proceedings under the said Constitution." 

The elections of the several states were held conformably to 
the above resolution. On Wednesday the 4th of March, 1789, 
pi-oceedings commenced under the Constitution; and on the 
30th of April, of the same year, Geoege Washington, elected 



APPENDIX. 103 

by the unanimous suffrage of the electors, was inaugurated as 
President of the United States. 



On the 11th of January, 1790, the folloAving ratification of 
the Constitution, by the state of North Carolina, was commu- 
nicated by President Washington to both houses of Congress : 

STATE OF NORTH CAROLINA.— November 21, 1789. 

In Convention-. 
Whereas the General Convention which met in Philadelphia, 
in pursuance of a recommendation of Congress, did recommend 
to the citizens of the United States a Constitution or form of 
government in the following words, namely, — 

" We, the people," &c. [Here follows the Constitution of 
the United States, verbatim.'] 

Hesolved, That this Convention, in behalf of the freemen, 
citizens and inhabitants of tlie state of North Carolina, do 
adopt and ratify the said Constitution and form of govern- 
ment. 
Done in Convention this 21st day of November, one thou- 
sand seven hundred and eighty-nine. 

(Signed) SAMUEL JOPINSON, 

JPresident of the Convention. 

jlMErTAYLOE, j- ^^<^^'^f^'^''- 



RHODE ISLAND.— May 29, 1790. 

[The Constitution of the United States of America precedes the 
following ratification.] 

Matification of the Constitution hy the Convention of the State 
of Rhode Island and Providence Plantations. 
We, the delegates of the people of the state of Rhode Island 
and Providence Plantations, duly elected and met in Conven- 
tion, having maturely considered the Constitution for the 
United States of America, agreed to on the seventeenth day of 
September, in the year one thousand seven hundred and eighty- 
seven, by the Convention then assembled at Philadelphia, in 
the commonwealth of Pennsylvania (a copy whereof precedes 
these presents), and having also seriously and deliberately con- 
sidered the present situation of this state, do declare and make 
known, — 



104 APPENDIX. 

I. That there are certain natural rights of Avhich men, when 
they form a social comjjact, cannot deprive or divest their pos- 
terity, — among which are the enjoyment of life and liberty, 
with the means of acquiring, possessing, and pi'otecting prop- 
erty, and pursuing and obtaining haj^piness and safety. 

II. That all power is naturally vested in, and consequently 
derived from, the peoj)le ; that magistrates, therefore, are their 
trustees and agents, and at all times amenable to them. 

III. That the poAvers of government may be reassumed by 
the people whensoever it shall become necessary to their happi- 
ness. That the rights of the states respectively to nominate 
and appoint all state officers, and every other power, jurisdic- 
tion, and right, which is not by the said Constitution clearly 
delegated to the Congress ^f the United States, or to the 
departments of government thereof, remain to the peoj)le of 
the several states, or their respective state governments, to 
whom they may have granted the same ; and that those clauses 
in the Constitution which declare that Congress shall not have 
or exercise certain powers, do not imply that Congress is 
entitled to any powers not given by the said Constitution ; but 
such clauses are to be construed as exceptions to certain 
specified j)owers, or as inserted merely for greater caution. 

IV. That religion, or the duty which we owe to our Creator, 
and the manner of discharging it, can be directed only by 
reason and conviction, and not by force and violence ; and 
therefore all men have a natural, equal, and unalienable right 
to the exercise of religion according to the dictates of con- 
science ; and that no particular religious sect or society ought 
to be favored or established, by law, in preference to others. 

V. That the legislative, executive, and judiciary powers of 
government should be separate and distinct ; and, that the 
members of the two first may be restrained from oppression, 
by feeling and participating the public burdens, they should, at 
fixed periods, be reduced to a private station, returned into the 
mass of the people, and the vacancies be supplied by certain 
and regular elections, in which all or any part of the former 
members to be eligible or ineligible, as the rules of the con- 
stitution of government and the laws shall direct. 

VI. That elections of representatives in legislature ought to 
be free and frequent; and all men having sufficient evidence 
of permanent common interest with, and attachment to, the 



APPENDIX. 105 

community, ought to have the right of suffrnge ; and no aid, 
charge, tax, or fee, can be set, rated, or levied, upon the people 
without their own consent, or that of their representatives so 
elected, nor can they be bound by any law to which they have 
not in like manner consented for the public good. 

VII. That all j^ower of suspending laws, or the execution of 
laws, by any authority, without the consent of the repi-esent- 
atives of the people in the legislature, is injurious to their 
rights, and ought not to be exercised. 

VIII. That, in all capital and criminal prosecutions, a nian 
hath a right to demand the cause and nature of his accusation, 
to be confronted with the accusers and Avitnesses, to call for 
evidence, and be allowed counsel in his favor, and to a fair and 
speedy trial by an impartial jury in his vicinage, without 
whose unanimous consent he cannot be found guilty (except in 
the government of the land and naval forces), nor can he be 
compelled to give evidence against himself. 

IX. That no freeman ought to be taken, imprisoned, or dis- 
seized of his freehold, liberties, privileges, or franchises, or 
outlawed, or exiled, or in any manner destroyed or deprived of 
his life, liberty, or property, but by the trial by jury, or by the 
law of the land. 

X. That every freeman restrained of his liberty is entitled to 
a remedy, to inquire into the lawfulness thereof, and to remove 
the same if unlawful, and that such remedy ought not to be 
denied or delayed. 

XI. That in controversies respecting property, and in suits 
between man and man, the ancient trial by jury, as hath been 
exercised by us and our ancestors, from the time whereof the 
memory of man is not to the contraiy is one of the greatest 
securities to the rights of the jDCople, and ought to remain 
sacred and inviolable, 

XII. That every freeman ought to obtain right and justice, 
freely and without sale, completely and without denial, promptly 
and without delay; and that all establishments or regulations 
contravening these rights are oppressive and unjust. 

XIII. That excessive bail ought not to be required, nor exces- 
sive fines imposed, nor cruel or unusual punishments inflicted. 

XIV. That every person has a right to be secure from all 
unreasonable searches and seizures of his person, his papers, or 
his property • and therefore, that all warrants to search suspec- 



106 APPENDIX. 

ted. places, to seize any person, his papers, or his property, with- 
out information upon oath or affirmation of sufficient cause, are 
grievous and oppressive ; and that all general warrants (or such 
in which the place or person suspected are not particularly desig- 
nated) are dangerous, and ought not to be granted. 

XV. That the people have a right peaceably to assemble 
together to consult for their common good, or to instruct their 
representatives ; and that every person has a right to petition or 
apply to the legislatui-e for redress of grievances. 

XVI. That the people have a right to freedom of speech, and 
of writing and publishing their sentiments. That freedom of the 
press is one of the greatest bulwarks of liberty, and ought not 
to be violated. 

XVII. That the people have a right to keep and bear arms ; 
that a. well-regulated militia, including the body of the people 
capable of bearing arms, is the proper, natural, and safe defense 
of a free state ; that the militia shall not be subject to martial 
law, except in time of war, rebellion, or insurrection ; that stand- 
ing armies in time of peace, are dangerous to liberty, and ought 
not to be kept up, except in cases of necessity ; and that, at all 
times, the military should be under strict subordination to the 
civil power ; that in time of peace, no soldier ought to be quar- 
tered in any house without the consent of the owner, and in time 
of war only by the civil magistrates, in such manner as the law 
directs. 

XVIII. That any person religiously scrupulous of bearing 
arms ought to be exempted upon payment of an equivalent to 
employ another to bear arms in his stead. 

Under these impressions, and declaring that the rights afore- 
said cannot be abridged or violated, and that the explanations 
aforesaid are consistent with the said Constitution, and in confi- 
dence that the amendments hereafter mentioned will receive an 
early and mature consideration, and conformably to the fifth 
article of said Constitution, speedily become a part thereof, — 
We, the said delegates, in the name and in the behalf of the peo- 
ple of the state of Rhode Island and Providence Plantations, do, 
by these presents, assent to and ratify the said Constitution. 
In full confidence, nevertheless, that until the amendments here- 
after proposed and undermentioned shall be agreed to and rati- 
fied, pursuant to the aforesaid fifth article, the militia of this 
state will not be continued in service out of this state, for a 



APPENDIX. 107 

longer term than six Aveeks, without the consent of the legisla- 
ture thereof; that the Congress will not make or alter any regu- 
lation in this state respecting the times, places, and manner of 
holding elections for senators or representatives, unless the 
lesrislature of this state shall neglect or refuse to make laws or 
regulations for the purpose, or, from any circumstance, be inca- 
pable of making the same ; and that, in those cases, such power 
will only be exercised until the legislature of this state shall 
make provision in the premises ; that the Congress will not lay 
direct taxes within this state, but when the moneys arising from 
impost, tonnage, and excise, shall be insufficient for the public 
exigencies, nor until the Congress shall have first made a requisi- 
tion upon this state to assess, levy, and pay, the amount of such 
requisition made agreeable to the census fixed in the said Con- 
stitution, in such way and manner as the legislature of this 
State shall judge best ; and that Congress will not lay any cap- 
itation or poll-tax. 

Done in Convention at Newport, in the county of Newport, 
in the State of Rhode Island and Providence Plantations, 
the twenty-ninth day of May, in the year of our Lord one 
thousand seven hundred and ninety and in the fourteenth 
year of the independence of the United States of America. 
By order of the Convention. 

(Signed) DANIEL OWEN, President. 

Attest. Daniel Updike, Secretary. 

And the Convention do, in the name and behalf of the people 
of the State of Rhode Island and Providence Plantations, 
enjoin it upon their senators and representative or representa- 
tives, which may be elected to represent this State in Congress, 
to exert all their influence, and use all reasonable means, to 
obtain a ratification of the following amendments to the said 
Constitution, in the manner prescribed therein ; and in all laws 
to be passed by the Congi-ess in the mean time, to conform to 
the spirit of the said amendments, as far as the Constitution will 
admit. 

AilENDMENTS. 

I. The United States shall guaranty to each state its sover- 
eignty, freedom and independence, and every power, jurisdiction, 
and right, which is not by this Constitution expressly delega- 
ted to the United States. 



108 APPENDIX. 

II. That Congress shall not alter, modify, or interfere in, 
the times, places or manner, of holding elections for senators 
and representatives, or either of them, excei^t when the legisla- 
latnre of any state shall neglect, refnse, or be disabled, by inva- 
sion or rebellion, to prescribe the same, or in case when the pro- 
vision made by the state is so imperfect as that no consequent 
election is had, and then only until the legislature of such state 
shall make provision in the premises. 

III. It is declared by the Convention, that the judicial power 
of the United States, in cases in which a state may be a party, 
does not extend to criminal prosecutions, or to authorize any 
suit by any person against a state ; but to remove all doubts 
or controversies respecting the same, that it be especially 
expressed, as a part of the Constitution of the United States, 
that Congress shall not, directly or indirectly, either by them- 
selves or through the judiciary, interfere with any one of the 
States, in the redemption of paper money already emitted, and 
now in circulation, or in liquidating and discharging the public 
securties of any one state ; that each and every state shall have 
exclusive right of making such laws and regulations for the 
before mentioned purpose as they shall think proper. 

IV. That no amendments to the Constitution of the United 
States, hereafter to be made, pursuant to the fifth article, 
shall take effect, or become a part of the Constitution of the 
United States, after the year one thousand seven hundred and 
ninety-three, without the consent of eleven of the States here- 
tofoi'e united under the Confederation. 

V. That the judicial powers of the United States shall extend 
to no possible case Avhere the cause of action shall have origina- 
ted before the ratification of this Constitution, except in dis- 
putes between States about their territory, disputes between 
persons claiming lands under grants of different States, and 
debts due to the United States. 

VI. That no person shall be compelled to do military duty 
otherwise than by voluntary enlistment, except in cases of gen- 
eral invasion ; anything in the second paragraph of the sixth 
article of the Constitution, or any law made under the Con- 
stitution, to the contrary notwithstanding. 

VII. That no capitation or poll-tax shall ever be laid by Con- 
gvess. 



APPENDIX. 109 

VIII. In cases of direct taxes, Congress shall first make 
requisitions on the several States to assess, levy, and pay, their 
respective proportions of such requisitions, in such way and 
manner as the legislatures of the several States shall judge 
best ; and in case any State shall neglect or refuse to pay its 
proportion, pursuant to such requisition, then Congress may 
assess and levy such State's proportion, together with interest, 
at the rate of six per cent per annum, from the time pre- 
scribed in such requisition. 

IX. That Congress shall lay no direct taxes without the con- 
sent of the legislatures of three-fourths of the States in the 
Union. 

X. That the Journal of the pi-oceedings of the Senate and 
House of Representatives shall be jDublished as soon as conveni- 
ently may be, at least once in every year ; except such parts 
thereof relating to treaties, alliances, or military operations, as 
in their judgment require secrecy, 

XL Tliat regular statements of the receipts and expenditures 
of all public moneys shall be published at least once a year. . 

XII. As standing armies, in time of peace, are dangerous to 
liberty, and ought not to be kept up, except in cases of neces- 
sity, and as, at all times, the military should be under strict 
suboi'dination to the civil power, that, therefore, no standing 
army or regular troops shall be raised or kept up in time of 
peace. 

XIII. That no moneys be borrowed, on the credit of the 
United States, without the assent of two-thirds of the Senators 
and Representatives present in each House. 

XIV. That the Congress shall not declare war without the 
concurrence of two-thirds of the Senators and Representatives 
present in each House. 

XV. That the words " without the consent of Congress," in 
the seventh clause in the ninth section of the first article of 
the Constitution be expunged. 

XVI. That no judge of the Supreme Court of the United 
States shall hold any other office under the United States, 
or any of them; nor shall any officer appointed by Congress, or 
by the President and Senate of the United States, be permitted 
to hold any office under the appointment of any of the States. 

XVII. As a traffic tending to establish or continue the slavery 
of any part of the human species is disgraceful to the cause of 

64 



110 APPENDIX. 

liberty and humanity, that Congress shall, as soon as may be, 
promote and establish such laws and regulations as may effectu- 
ally prevent the importation of slaves of every description into 
the United States. 

XVIII. That the state legislatures have power to recall, 
when they think it expedient, their federal senators, and to send 
others in their stead. 

XIX. That Congress have power to establish a uniform rule 
of inhabitancy or settlement of the poor of the different states 
throughout the United States. 

XX. That Congress erect no company with exclusive advan- 
tages of commerce. 

XXI. That when two members shall move and call for the 
ayes and nayes on any question, they shall be entered on the 
Journals of the houses respectively. 

Done in Convention, at ISTewport, in the county of Newport, 
in the state of Rhode Island and Providence Plantations, 
the twenty-ninth day of May, in the year of our Lord one 
thousand seven hundred and ninety, and the 14th year of 
the independence of the United States of America. 
By order of the Convention. 
(Signed) DANIEL OWEN, President. 

Attest. Daniel Updike, Secretary. 



On the 9th of February, 1791, the following acts of the state 
of Vermont, relating to the Constitution, were communicated 
to Congress : 

STATE OF VERMONT. 
An Act to authorize the People of this State to meet in Con- 
vention^ to deliberate upon and agree to the Constitution 
of the United States. 

"Whereas, in the opinion of this legislature, the future interest 
and Avelfire of this state render it necessary that the Con- 
stitution of the United States of America, as agreed to by the 
Convention at Philadelphia, on the seventeenth day of Septem- 
ber, in the year of our Lord one thousand seven hundred and 
eighty-seven, with the several amendments and alterations, as 
the same has been established by the United States, should be 
laid before the people of this state for their approbation, — 
■ It is hereby enacted, by the General Assembly of the state 
of Vermont, That the first constable in each town shall wain 



APPENDIX. Ill 

the inhabitants, who, by law, are entitled to vote for repre- 
sentatives in General Assembly, in the same manner as they 
warn freemen's meetings, to meet in their respective towns on 
the first Tuesday of December next, at ten o'clock forenoon, 
at the several places fixed by law for holding the annual elec- 
tion ; and when so met they shall proceed, in the same manner 
as in the election of representatives, to choose some suitable 
person, from each town, to serve as a delegate in a state con- 
vention, for the purpose of deliberating upon and agreeing to 
the Constitution of the United States as now established; 
and the said constable shall certify to the said convention the 
person so chosen in the manner aforesaid. And, 

It is hereby further enacted, by the authority aforesaid, 
That the persons so elected to serve in State convention, as 
aforesaid, do assemble and meet together on the first Thursday 
of January next, at Bennington, then and there deliberate upon 
the aforesaid Constitution of the United States, and if approved 
of by them, finally to assent to and ratify the same, in behalf 
and on the part of the people of this State, and make report 
thereof to the governor of this State for the time being, to be by 
him communicated to the President of the United States, and 
the legislature of this State. 

State of Vermont, Secretary's Office, 
Bennington, January 21, 1791. 
The preceding is a true copy of an act passed by the legisla- 
ture of the State of Vermont, the twenty-seventh day of 
October, in the year of our Lord one thousand seven hundred 

nine y. j^qSWELL HOPKINS, Secretary of State. 

In Convention of the Delegates of the People of the 
State of Vermont. 

Whereas, by an act of the commissioners of the State of New 
York, done at New York, the seventeenth day of October, in 
the fifteenth year of the independence of the United States of 
America, one thousand seven hundred and ninety, every impedi- 
ment, as well on the part of the State of New York as on the 
part of the State of Vermont, to the admission of the State of 
Vermont into the Union of the United States of America, is 
removed ; in full faith and assurance that the same will stand 
approved and ratified by congress. 

This Convention having impartially deliberated upon the Con- 
stitution of the United States of America, as now established. 



112 APPENDIX. 

submitted to ns by an act of the General Assembly of the State 
of Vermont, passed October the twenty-seventh, one thousand 
seven hundred and ninety, — Do, in virtue of the power and 
authority to us given for that purpose, fully and entirely 
approve of, assent to, and ratify, the said Constitution ; and 
declare that, immediately from and after this State shall be 
admitted by the Congress into the Union, and to a full partici- 
pation of the benefits of the government now enjoyed by the 
States in the Union, the same shall be binding on us, and the 
people of the State of Vermont forever. 

Done at Bennington, in the county of Bennington, the tenth 
day of Januarjr, in the fifteenth year of the independence 
of the United States of America, one thousand seven hun- 
dred and ninety-one. 
In testimony whereof, we have hereunto subscribed our names. 

(Signed) THOMAS CHITTENDEN, President. 

Signed by one hundred and five members — dissented, four. 
Attest. RoswELL Hopkins, Secretar}/ of Convention. 



]sro. 1-4. 

At the first session of the first Congress under the Constitu- 
tion, the following resolution was adopted: 

Congress of the United States; 

JSegun and held in the City of New Ybric, on Wednesday^ the 
Uh of 3Iarch, 1V89. 

" The conventions of a number of the States having, at the 
time of their adopting of the Constitution, expressed a desire, in 
order to prevent misconstruction or abuse of its powers, that 
further declaratory and restrictive clauses should be added ; and 
as extending the ground of public confidence in the government 
will best insure the beneficent ends of its institution : 

" Resolved hy the Senate a7id House of Hejyresentatives of the 
United States of America, in Congress asseinhled, two-thirds of 
both houses concurring, that the following articles be pro- 
posed to the legislatures of the several States, as amendments 
to the Constitution of the United States, all or any of which 
articles, when ratified by three-fourths of the said legislatures, 
to be valid, to all intents and purposes, as part of the said 
Constitution, namely — 
" Articles in addition to, and Amendment of the Constitution 

of the United States of America^ proposed hy Congress, and 



APPENDIX. 113 

ratified hy the Legislatures of the several States, pursuant to 

the Fifth article of the original Constitution. 

« Art. I. After the first enumeration required by the first 
article of the Constitution, there shall be one representative for 
every thirty thousand, until the number shall amount to one 
hundred, after which the proportion shall be so regulated by 
Congress, that there shall not be less than one hundred rep- 
resentatives, nor less than one representative for every forty 
thousand persons, until the number of .representatives shall 
amount to two hundred, after which the proportion shall be so 
reo-ulatedby Congress, that there shall not be less than two hun- 
dred representatives, nor more than one representative for every 

fifty thousand. 

" Art. II. No law varying the compensation for services of 
the senators and representatives shall take effect, until an 
election of representatives shall have intervened. 

" Art. III. Congress shall make no law respecting an estab- 
lishment of religion, or prohibiting the free exercise thereof, or 
abridging the freedom of speech, or of the press, or the right 
of the people peaceably to assemble, and to petition the gov- 
ernment for a redress of grievances. 

" Art. IV. A well-regulated militia being necessary to the 
seeurity of a free State, the right of the people to keep and 
bear arms shall not be infringed. 

"Art. V. No soldier shall, in time of peace, be quartered m 
any house without the conseot of the owner, nor in time of war, 
but in a manner prescribed by law. 

" Art. VI. The right of the people to be secure in their 
persons, houses, papei^, effects, against unreasonable searches 
and seizures, shall not be violated ; and no warrants shall issue, 
but upon principal cause, supported by oath or affirmation, and 
particularly describing the place to be searched and the persons 
or things to be seized. 

" Art. VII. No person shall be held to answer for a capital 
or otherwise infamous crime, unless on a presentment or indict- 
ment of a grand jury, except in cases arising in the land or 
naval forces, or in the militia when in actual service in time of 
war or public danger; nor shall any person be subject, for the 
same offense, to be twice be put in jeopardy of life or limb ; nor 
shall be compelled, in any criminal case, to be a witness 
against himself; nor be deprived of life, liberty, or property. 



114 APPENDIX. 

without due process of law ; nor shall private property be taken 
for public use without just compensation. 

" Art, VIII. In all criminal prosecutions, the accused shall 
enjoy the right of a speedy and public trial, by an impartial 
jury of the State and district wherein the crime shall have 
been committed, which district shall have been previously ascer- 
tained by law ; and to be informed of the nature and cause of 
the accusation; to be confronted with the witnesses against 
him ; to have compulsory process for obtaining witnesses in his 
favor ; and to have the assistance of counsel for his defense. 

" Art. IX. In suits at common law, where the value in con- 
troversy shall exceed twenty dollars, the right of trial by jury 
shall be preserved, and no fact tried by a jury shall be otherwise 
re-examined in any court of the United States, than according 
to the rules in common law. 

" Art. X. Excessive bail shall not be required, nor excessive 
fines imposed, nor cruel and unusual punishments inflicted. 

" Art. XI. The enumeration in the Constitution, of certain 
rights, shall not be construed to deny or disparage others 
retained by the people. 

"Art. XII. The powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are 
reserved to the States, respectively, or to the people. 

"FREDERICK AUGUSTUS MUHLENBERG, 

Speaker of the Souse of Hepresentatwes. 

"JOHN ADAMS, F^ce-P/•e5^c?6w^o/^Ae United States, 
and President of the Senate.'''* 



]sro. 15. 

Which, being transmitted to the several State legislatures, 
were decided upon by them, according to the following returns : 

JBy the State of New Hampshire. — Agreed to the whole of 
the said amendments, except the 2d article. 

JBy the State of New YorJc. — Agreed to the whole of the 
said amendments, except the 2d article. 

JSy the State of Pennsylvania. — Agreed to the 3d, 4th, 5th, 
6th, 7th, 8th, 9th, 10th, 11th, and 12th articles of the said 
amendments. 

By the State of Delaware. — Agreed to the whole of the said 
amendments except the 1st article. 



APPENDIX. 115 

By the State of Maryland. — Agreed to the whole of the said 
twelve amendments. 

Hy the State of JVbrth Carolma. — Agreed to the whole of 
the said twelve amendments. 

-By the State of Hhode Island and Provide^ice Plantations. 
— Agreed to the whole of the said twelve articles. 

J8y the State of JVeio Jersey. — Agreed to the whole of the 
said amendments except the 2d article. 

J3y the State of Virginia. — Agreed to the whole of the said 
twelve articles. 

No returns were made by the States of Massachusetts, Con- 
necticut, Georgia and Kentucky. 

The amendments thus proposed became a part of the Con- 
stitution, the first and second of them excepted, which were not 
ratified by a sufficient number of the State legislatures. 

At the first session of the third Congress, the following 
amendment was proposed to the State legislatures : 
United States in Congress Assembled. 

" Resolved., by the Seixate and House of Pejjresentatives of 
the United States of America hi Congress assembled., two- 
thirds of both houses concurring, That the following article be 
proposed to the legislatures of the several States, as an amend- 
ment to the Constitiition of the United States ; which when 
ratified by three-fourths of the said legislatures, shall be valid 
as part of the said Constitution, namely, — 

"The judicial power of the United States shall not be con- 
strued to extend to any suit in laAV or equity, commenced 
or prosecuted against one of the United States, by citizens or 
subjects of any foreign State. 

" FREDERICK AUGUSTUS MUHLENBERG, 

Speaher of the Souse of Pepresentatives. 
"JOHN ADAMS, Vice-President of the United States^ 
and President of the Senate. 
"Attest. J. Becklet, Clerk of the House of Pepresentatives. 
Sam. a. Otis, Secretary of the Senate.'''' 

From the Journals of the House of Representatives, at the 
second session of the third Congress, it appears that returns 
from the State legislatures, ratifying this amendment, were 
received, as follows : — 

From New York, Massachusetts, Vermont, New Hampshire, 
Georgia, and Delaware. 



116 APPENDIX. 

At the first session of the fourth Congress, further returns, 
ratifjdng the same amendment, were received from Rhode 
Island and North Carolina. 

At the second session of the fourth Congress, on the 2d of 
March, 1787, the following resolution was adoped : 

"United States in Congkess Assembled. 
^^ Besolved, by the Senate and House of Bepresentatives of 
the United States of America in Congress assembled^ That 
the President be requested to adopt some speedy and effectual 
means of obtaining information from the States of Connecticut, 
New Jersey, Pennsylvania, Maryland, Virginia, Kentucky, 
Tennessee, and South Carolina, whether they have ratified the 
amendment proposed by Congress to the Constitution concern- 
ing the suability of States ; if they have, to obtain the -proper 
evidence thereof. 

"JONATHAN DAYTON, 

Speaker of the House of Mepresentatives. 

"WILLIAM BINGHAM. 

President^ pro tempore^ of the Senate. 
Approved March 2, 1797. 

" GEORGE WASHINGTON, 

President of the United States.'''' 
At the second session of the fifth Congress, the following 
message from the President of the United States was transmit- 
ted to both houses : 

From a report of the Secretary of State, made under the 
direction of President Adams, on the 28th December, 1797, it 
appeared that the States of Connecticut, Maryland and Vir- 
ginia, had ratified the amendment ; that New Jersey and Penn- 
sylvania had not ratified it; South Carolina had not definitely 
acted upon it. No answers had been received from Kentucky 
and Tennessee. 

MESSAGE. 

'''■Gentlemen of the Senate^ and Gentlemen of the House of 

Pepresentatives : — 

" I have an opportunity of transmitting to Congress a report 
of the Secretary of State, with a copy of an act of the legisla- 
ture. of the State of Kentucky consenting to the ratification of 
the amendment of the Constitution of the United States pro- 
posed by Congress, in their resolution of the second day of 



APPENDIX. 117 

December, 1793, relative to the suability of States. Thia 
amendment having been adopted by three-fourths of the sev- 
eral States, may now be declared to be a part of the Con- 
stitution ol the United States. 

" United States, January 8, 1798. JOHN ADAMS." 



NO. 16. 

" Eighth Congress of the United States. 
At the First Session^ begun and held at the City of Washing- 
ton^ in the Territory of Columbia, on 3Ionday, the seven- 
teenth of October, one thousand eight hundred and three. 
" Hesolved, by the Senate and House of Representatives of 
the United States of America in Congress assembled, two- 
thirds of both houses concui-ring, That, in lieu of the third para- 
graph of the first section of the second article of the Constitu- 
tion of the United States, — which, when ratified by three- 
fourths of the legislatures of the several States, shall be valid 
to all intents and purposes, as a part of the said Constitu- 
tion, to wit, — 

" ' The electors shall meet in their respective States, and vote 
by ballot for President and Vice-President, one of whom, at least, 
shall not be an inhabitant of the same State with themselves ; 
they shall name in their ballots the person voted for as President, 
and in distinct ballots the person voted for as Vice-President ; 
and they shall make distinct lists of all persons voted for as 
President, and of all persons voted for as Vice-President, and 
of the number of votes for each ; which lists they shall sign and 
certify, and transmit sealed to the seat of the government of 
the United States, directed to the president of the Senate. 
The president of the Senate shall, in the presence of the 
Senate and House of Representatives, open all the certificates, 
and the votes shall then be counted. The person having the 
greatest number of votes for President shall be the President, 
if such number be a majority of the whole number of electors 
appointed; and if no person have such a majority, then from 
the persons having the highest numbers, not exceeding three, 
on the list of those voted for as President, the House of Repre- 
sentatives shall choose immediately, by ballot, the President. 
But in choosing the President, the votes shall be taken by 
states, the representations from each state having one vote ; a 
65 



118 APPENDIX. 

quorum for this purpose shall consist of a member or members 
from two-thirds of the states, and a majority of all the states 
shall be necessary to a choice. And if the House of Represent- 
atives shall not choose a President whenever the right of choice 
shall devolve upon them, before the fourth day of March, next 
following, then the Vice-President shall act as President, as in 
the case of the death or other constitutional disability of the 
President. 

" ' The person having the greatest number of votes as Vice- 
President shall be the Vice-President, if such number be a 
majority of the whole number of electors appointed ; and if 
no j^erson have a majority, then, from the two highest num- 
bers on the list, the Senate shall choose the Vice-President. A 
quorum for that purpose shall consist of two-thirds of the 
whole number of the Senators, and a majority of the whole 
number shall be necessary to a choice. 

"'But no person constitutionally ineligible to the office of 
President shall be eligible to that of Vice-President of the 
United States.' 

" Attest. John Beckley, 

Clerh of the House of Representatives oftne if nited States. 
"Sam. a. Otis, 

Secretary to the Senate of the TInited States^ 

At the same session, an act passed of which the following is 
the 1st section: 

*''' An act suppleinentary to an Act, entitled An Act relative to 
the election of a President and Vice-President of the TInited 
States, and declaring the Officer loho shall act as President, in 
Case of Vacancies in the Offices both of President and Vice- 
President. 

" Pe if enacted, by the Senate and House of Representatives 
of the United States of America in Congress assembled. That, 
whenever the amendment proposed, during the present session 
of Congress, to the Constitution of the United States, respecting 
the manner of voting for President and Vice-President of the 
United States, shall have been ratified by the legislatures of 
three-fourths of the sevei-al states, the secretary of state shall 
forthwith cause a notification thereof to be made to the execu- 
tive of every state, and shall also cause the same to be published 
in at least one of the newspapers printed in each state, in Avhich 
the laws of the United States are annually published. The 



f APPENDIX. 1X9 

executive authority of each state shall cause a transcript of the 
said notification to be delivered to the electors appointed for 
that purpose, who shall first thereafter meet in such state, for 
the election of a President and Vice-President of the United 
States ; and whenever the said electors shall have received the 
said transcript of notification, or whenever they shall meet more 
than five days subsequent to the publication of the above-men- 
tioned amendment, in one of the newspapers of the state, by 
the secretary of state, they shall vote for President and Vice- 
President of the United States, respectively, in the manner 
directed by the above-mentioned amendment ; and, having made 
and signed three certificates of all the votes given by them, 
each of which certificates shall contain two distinct lists — one, 
of the votes given for President, and the other, of the votes 
given for Vice-President— they shall seal up the said certificates, 
certifying on each that lists of all the votes of such state given 
for President, and of all the votes given for Vice-President, are 
contained therein, and shall cause the said certificates to be 
transmitted and disposed of, and in every other respect act in 
conformity with the provisions of the act to which this is a 
supplement. And every other provision of the act to which 
this is a supplement, and which is not virtually repealed by this 
act, shall extend and apply to every election of a President and 
Vice-President of the United States, made in conformity to the 
above-mentioned amendment to the Constitution of the United 
States." 



NO. 17. 

And on the 25th of September, 1804, the following notice 
in pursuance of the above provision, was issued from the state 
department : 

" -^.y James Madison, Secretary/ of State of the United States. 
" Public notice is hereby given, in pursuance of the act of 
Congress passed on the 26th March last, entitled 'An Act sup- 
plementary to the Act entitled An Act relative to the Election 
of a President and Vice-President of the United States, and 
declaring the ofiicer who shall act as President, in case of 
vacancies in the offices both of President and Vice-President,* 
Tliat the amendment proposed, during the last session of Con- 
gress, to the Constitution of the United States, respecting the 
manner of voting for President and Vice-President of the 



120 APPENDIX. 

United States, has been ratified by the legislatures of three- 
fourths of the several states — to wit, by those of Vermont, 
Rhode Island, New York, New Jersey, Pennsylvania, Maryland, 
Virginia, Ohio, Kentucky, Tennessee, North Carolina, South 
Carolina, and Georgia, and has thereby become valid as part of 
the Constitution of the United States. 

" Given under my hand, at the city of "Washington, this 
twenty-fifth day of September, 1804. 

(Signed) JAMES MADISON." 

isro. 18. 

LOUISIANA. 

To illustrate the mode of investing the people of a territory 
with the franchise of a political state in the Union, take the 
history of Louisiana from the time of the cession of that ter- 
ritory by France to the United States, until the state of 
Louisiana was incorporated and her inhabitants enfranchised. 

By an act of congress of October 31, 1803, the President of 
the United States was authorized to take possession of, and to 
occupy the territory ceded by France to the United States — 
the Louisiana territory — and to maintain the authority of the 
nation therein by the employment of the army and navy to any 
extent necessary ; and, until the expiration of that session of 
congress, unless a temporary government was sooner provided 
the military, civil and judicial powers exercised by the ofiicers 
of the existing government, were to be vested in such persons 
as the president might appoint, for the purpose of maintaining 
and protecting the inhabitants of the territory in the free 
enjoyment of their liberty, property and religion. (2 United 
States Statutes at Large, p. 245 ) 

On the 26th March, 1804, by an act of congress of that date, 
the country ceded by France to the United States under the 
name of the Louisiana territory, was divided into two ter- 
ritories ; and the lands south of the Mississippi territory was 
denominated the territory of Orleans, and a territorial govern- 
ment was organized therein. The executive power in the 
territory was vested in a governor, who was to be appointed by 
the president ; a secretary was to be appointed by the president, 
whose duty it was, under the direction of the governor, to 
record and preserve all the papers and proceedings of the 
executive, and all the acts of the governor and legislative 
counsels, and transmit authentic copies of the proceedings of 



APPENDIX. 121 

the governor in his executive department, every six months, to 
the president. 

The legislative poAvers for the territory were vested in the 
governor and a legislative coimcil to be appointed by the presi- 
dent, consisting of thirteen of the most fit and discreet persons 
of the territory. Their laws were to be laid before congress, 
and if disapproved by them, they were to be of no force. This 
act also provided for the establishment of a judiciary depart- 
ment, the judges, marshals, and district attorney to be 
appointed by the president. The governor and council were to 
have no control over the primary disposition of the soil, nor 
to tax the lands of the United States ; nor to decide upon any 
interfering claims. The laws of the United States were to be 
enforced in such territory. (2 United States Statutes at Large, 
pp. 283, 284.) The residue of the Louisiana territory was to be 
called the district of Louisiana, and Avas substantially, for politi- 
cal or governmental purposes, annexed to the territory of 
Indiana, to be under' the government of the officers of that ter- 
ritory. (See 2 United States Statutes at Large, p. 287.) 

By the act of congress of February 20, 1811, to enable the 
people of the territory of Orleans to form a constitution and 
state government, and for the admission of such state into the 
Union on an equal footing with the original states, it was pro- 
Tided, that the inhabitants of all that part of the territory 
or country ceded under the name of Louisiana by the treaty 
made at Paris, etc., between the United States and France, 
contained within the limits therein described, etc., are hereby 
authorized to form for themselves a constitution and state gov- 
ernment, and to assume such name as they may deem proper 
under the provisions, and upon the conditions therein mentioned. 
Then followed the directions as to the persons who should par- 
ticipate in the formation of the constitution and government, 
and such other directions and conditions as congress saw fit to 
impose upon them. (See 2 United States Statutes at Large, pp. 
641, 642.) 

Under this enabling act of congress, the authorized inhabit- 
ants of that territory elected their delegates, held their 
convention, prepared their constitution of state government, 
and submitted the same to congress, which, on the 8th of 
April, 1812, by preamble, reciting that the people of the ter- 
ritory of Orleans, within the boundaries therein set forth, had, 



122 APPENDIX. 

under the enabling act of February 20, 1811, formed a constitu- 
tion and state government, and had submitted said constitution 
to congress, which was approved. Therefore congress enacted 
that the said State of Louisiana should be one, and it was 
thereby declared to be one of the United States of America ; 
and admitted into the Union on an equal footing with the 
original states. (See 2 United States Statutes at Large, pp. 
701, 702, 703,704.) 

In tracing the legal and political history of the formation 
and incoriDoration of the State of Louisiana into the Union, the 
reader will find the substantial history of all the new states, 
which have been created and admitted into political union with 
the other states since the organization of the general govern- 
ment. This of itself is a sufficient refutation of the theory of 
the original and inherent sovereignty of the states as political 
institutions. 

MISSISSIPPI. 

March 1, 1817, congress passed an act to enable the people 
of the western part of the Mississippi territory to form a con- 
stitution and a state government, and for the admission of such 
state in the Union, on an equal footing with the original states. 
(3 United States Statutes at Large, pp. 348, 349.) The people 
of the territory having complied with the provisions of the 
enabling act aforesaid, were admitted as a political corj)oration, 
into the Union by a joint resolution of congress, Dec. 10, 1817. 
(See 3 United States Statutes at Large, p. 472.) 

The history of the incorporation and admission of neAV states 
into the Union has always been by the authority of the United 
States, and not by the authority of the states themselves. 



APPENDIX. 123 

NO. 19. 
SUPREME COURT OF THE UNITED STATES. 

*Mx-partG : In the matter of A. H. Gaeland^ \ On motion for 

of Arkansas, Petitioner. f leave to prac- 

JEx-parte : In the matter of R. II. Maer, of ( tice as attor- 

Louisiana, Petitioner, I neys, etc. 

and 

John A. Cummings, Plaintiff in Error ^ In error to the 

V. > S. C. of the 

The State of Missouri. ) State of Mo. 

Mr. Justice Miller dissenting. f 

I dissent from the opinion of the court just announced. * * 
* * * * 'pjjg constitution of the United States makes 
ample provision for the establishment of courts of justice to 
administer her laws, and to protect and enforce the rights of her 
citizens. Article III, Section I, of that instrument, says that 
" the judicial power of the United States shall be vested in one 
supreme court, and such inferior courts as the congress 
may, from time to time, ordain and establish." Section 8, of 
Article I, closes its enumeration of the powers conferred on 
congress by the broad declaration that it shall have authority 
"to make all laws which shall be necessary and jjroper for car- 
rying into execution the foregoing powers, and all other pow- 
ers, vested by the constitution in the government of the United 
States, or in any department thei'eof." 

Under these provisions congi-ess has ordained and established 
circuit courts, district courts, and territorial courts, and has, by 
various statutes, fixed the number of the judges of the supreme 
court. It has limited and defined the jurisdiction of all these, 
and determined the salaries of the judges who hold them. It has 
provided for their necessary officers, as marshals, clerks, pros- 
ecuting attorneys, bailifis, commissioners, and jurors. And by 
the act of 1789, commonly called the judiciary act, passed by 
the first congress assembled under the constitution, it is among 
other things enacted, that " in all the courts of the United 
States the parties may plead and manage their causes person- 
ally or by the assistance of such counsel or attorneys-at-law as, 

* December Term, 186G. 

t Chief Justice Chase and Justices Swayne and Davis concurring. Want of 
space prevents us from publislaing this interesting and valuable opinion at 
length. We select from it such parts as relate to the position and duties of 
attorneys, and to the definition of bills of attainder and expost facto laws. 



124 APPENDIX. 

by the rules of the said courts respectively, shall be permitted 
to manage and conduct causes therein." 

It is believed that no civilized nation of modern times has 
been without a class of men intimately connected with the 
courts, and with the administration of justice, called, variously, 
attorneys, counselors, solicitors, proctors, and other terms of 
similar import. The enactment which we have just cited 
recognizes this body of men, and their utility in the judicial 
system of the United States, and imposes uj)on the courts the 
duty of providing rules, by which persons entitled to become 
members of this class may be permitted to exercise the privi- 
lege of managing and conducting causes in these courts. They 
are as essential to the successful working of the courts, as the 
clerks, sheriffs, and marshals, and perhaps as the judges them- 
selves, since no instance is known of a court of law without 
a bar. 

The right to practice law in the courts as a profession, is a 
privilege granted by the law, under such limitations or condi- 
tions in each state or government as the law-making power may 
prescribe. It is a privilege and not an absolute right. The 
distinction may be illustrated by the difference between the 
right of a party to a suit in court to defend his own caused and 
the right of another to appear and defend for him. The one, 
like the right to life, liberty, and the pursuit of happiness, is 
inalienable. The other is the privilege conferred by law on a 
person who complies with the presci-ibed conditions. 

Every state in the Union, and every civilized government, 
has laws by which the right to practice in its courts may be 
granted, and makes that right to depend on the good moral 
character and professional skill of the party on whom the privi- 
lege is conferred. This is not only true in reference to the first 
grant of license to practice law, but the continuance of the 
right is made, by these laAvs, to depend upon the continued pos- 
session of those qualities. 

Attorneys are often deprived of this right, upon evidence of 
bad moral character, or specific acts of immorality and dishon- 
esty which show that they no longer possess the requisite quali- 
fications. 

All this is done by law, either statutory or common ; and 
whether the one or the other, equally the expression of legisla- 
tive will, for the common law exists in this country only as it is 
adopted or permitted by the legislatures, or by constitutions. 



APPENDIX. 125 

No reason is perceived why this body of men, in their import- 
ant relations to the courts of the nation, are not subject to the 
action of congress, to the same extent that they are under legis- 
lative control in the states, or in any other government ; and to 
the same extent that the judges, clerks, marshals, and other 
ofticei-s of the court are subject to congressional legislation. 
Having the power to establish the courts, to provide for and 
regulate the practice in those courts, to create their officers, 
and prescribe their functions, can it be doubted that congress 
has the full right to prescribe terms for the admission, rejection, 
and expulsion of attorneys, and for requiring of them an oath, 
to show whether they have the proper qualifications for the dis- 
charge of their duties ?******* 

The majority of this court, however, do not base their deci- 
sions on the mere absence of authority in congress, and in the 
states, to enact the laws which are the subject of consideration, 
but insist that the constitution of the United States forbids, in 
prohibitory terms, the passage of such laws, both to the congress 
and to the States. The provisions of that instrument, relied on 
to sustain this doctrine, are those which forbid Congress and the 
states, respectively, from passing bills of attainder and ex post 
facto laws. It is said that the act of congress, and the provi- 
sion of the constitution of the state of Missouri under review, 
are in conflict with both these prohibitions, and are therefore 
void. 

I will examine this proposition, in reference to these two 
clauses of the constitution, in the order in which they occur in 
that instrument. 

1. In regard to bills of attainder, I am not aware of any 
judicial decision by a court of federal jurisdiction which under- 
takes to give a definition of that term. We are thei-efore com- 
pelled to recur to the bills of attainder passed by the English 
parliament, that we may learn so much of their peculiar char- 
acteristics as will enable us to arrive at a sound conclusion, as 
to what was intended to be prohibited by the constitution. 

The word attainder is derived, by Sir Thomas Tomlins, in his 
law dictionary, from the words attincta and attinctura, and is 
defined to be " the stain or corruption of the blood of a criminal 
capitally condemned ; the immediate inseparable consequence of 
the common law, on the pronouncing the sentence of death." 
The eflTect of this corruption of blood was, that the party attainted 
66 



126 APPEITDIX. 

lost all inheritable quality, and could neither receive nor trans- 
mit any property or other rights by inheritance. 

This attainder, or corruption of blood, as a consequence of 
judicial sentence of death, continued to be the law of England, 
in all cases of treason, to the time that ouir constitution was 
framed, and, for aught that is known to me, is the law of that 
country, on condemnation for treason, at this day. 

Bills of attainder, therefore, or acts of attaindisr, as they were 
called after they were passed into statutes, were laws which 
declared certain persons attainted, and their blood corrupted so 
that it had lost all heritable quality. Whether it declared other 
punishment or not, it was an act of attainder if it declared this. 
This also seems to have been the main feature at which the 
authors of the constitution were directing their prohibition ; for 
after having, in article I, prohibited the passage of bills of 
attainder — in section nine, to congress, and in section ten, to the 
states — there still remained to the judiciary the power of declar- 
ing attainders. Therefore, to still further guard against this 
odious form of punishment, it is provided, in section 3, of article 
III, concerning the judiciary, that, while congress shall have 
power to declare the punishment of treason, no attainder of 
treason shall work corruption of blood or forfeiture, except 
during the life of the person attainted, v. 

This, however, while it was the chief, was not the only pecu- 
liarity of bills of attainder Avhich was intended to be included 
within the constitutional restriction. Upon an attentive 
examination of the distinctive features of this kind of legislation, 
I think it will be found that the following comprise those essen- 
tial elements of bills of attainder, in addition to the one already 
mentioned, which distinguish them from other legislation, and 
which made them so obnoxious to the statesmen who organized 
our government : 

1. They were convictions and sentences pronounced by the 
legislative department of the government, instead of the judicial. 

2. The sentence pronounced and the punishment inflicted 
were determined by no previous law or fixed rule. 

3. The investigation into the guilt of the accused, if any such 
were made, was not necessarily or generally conducted in his 
presence, or that of his counsel, and no recognized rule of evi- 
dence governed the inquiry. (See Story on the Constitution, 
Sec. 1344.) 



APPENDIX. 127 

It is no cause for wonder that men who had just passed suc- 
cessfully through a desperate struggle in behalf of civil liberty 
should feel a detestation for legislation of which these were the 
prominent features. The framei's of our political system had a 
full appreciation of the necessity of keeping separate and dis- 
tinct the primary departments of the government. Mr. 
Hamilton, in the seventy-eighth number of the Federalist, says 
that he agrees with the maxim of Montesquieu, that " there is 
no liberty if the power of judging be not separated from the 
legislative and executive powers." And others of the ablest 
numbers of that publication are devoted to the purpose of show- 
ing that in our Constitution these powers are so justly balanced 
and restrained that neither Avill probably be able to make much 
encroachment upon the others. Nor was it less repugnant to 
their views of the security of personal rights, that any person 
should be condemned without a hearing, and punished without 
a law previously prescribing the nature and extent of that 
punishment. They therefore struck boldly at all this machinery 
of legislative despotism, by forbidding the passage of bills of 
attainder and ex post facto laws, both to congress and to the 
states. 

It remains to inquire whether, in the act of congress under 
consideration (and the remarks apply with equal force to the 
Missouri Constitution), there is found any one of these features 
of bills of attainder, and if so, whether there is sufficient in the 
act to bring it fairly within the description of that class of bills. 

It is not claimed that the law works a corruption of blood. 
It will therefore be conceded at once, that the act does not 
contain this leading feature of bills of attainder. 

Nor am I capable of seeing that it contains a conviction or 
sentence, of any designated person or persons. It is said that 
it is not necessary to a bill of attainder that the party to be 
affected should be named in the act, and the attainder of the 
Earl of Kildare and his associates is referred to as showing that 
the act was aimed at a class. It is very true that bills of 
attainder have been passed against persons by some description, 
•when their names were unknown. But in such cases the law 
leaves nothing to be done to render its operation effectual, but 
to identify those persons. Their guilt, its nature, and its 
punishment are fixed by the statute, and only their personal 
identity remains to be made out. Such was the case alluded to. 



128 APPENDIX. 

The act declared the guilt and punishment of the Earl of Kil- 
dare, and all who were associated with him in his enterprise, 
and all that was required to insure their punishment was to 
prove that association. 

If this were not so, then the act was mere hrutum fulmen^ 
and the parties other than the earl could only be punished, not- 
withstanding the act, by proof of their guilt before some 
competent tribunal. 

No person is pointed out in the act of congress, either by 
name or by description, against whom it is to operate. The 
oath is only required of those who j)ropose to accept an ofRce 
or to practice law ; and as a pre-requisite to the exercise of the 
functions of the lawyer, or the officer, it is demanded of all 
jDcrsons alike. It is said to be directed as a class to those alone 
who were engaged in the rebellion ; but this is manifestly 
incorrect, as the oath is exacted alike from the loyal and the 
disloyal, under the same circumstances, and none are compelled 
to take it. Neither does the act declare any conviction, either 
of persons or classes. If so, who are they, and of Avhat crime 
are they declared to be guilty? Nor does it pronounce any 
sentence or inflict any punishment. If by any possibility it can 
be said to 2y>'ovide for conviction and sentence, though not found 
in the act itself, it leaves the party himself to determine his 
own guilt or innocence, and pronounce his own sentence. It is 
not, then, the act of congress, but the party interested, that 
tries and condemns. We shall see, when we come to the dis- 
cussion of this act in its relation to ex post facto laws, that it 
inflicts no punishment. 

A statute, then, which designates no criminal, either by name 
or description — which declares no guilt, pronounces no sentence^ 
and inflicts no punishment — can in no sense be called a bill of 
attainder. 

2. Passing now to consider whether the statute is an ex post 
facto law, we find that the meaning of that term as used in the 
constitution is a matter which has been frequently before this 
court, and it has been so well defined as to leave no room for 
controversy. The only doubt which can arise is as to the char- 
acter of the particular case claimed to come within the definition, 
and not as to the definition of the phrase itself 

All the cases agree that the term is to be applied to criminal 
causes alone, and not to civil proceedings. In the language of 



APPENDIX. 129 

Justice Stoey, in the case of Watson v. Mercer (8 Peters, 88), 
" ex x>ost facto laws relate to penal and criminal proceedings, 
which impose punishment and forfeiture, and not to civil pro- 
ceedings, which affect private rights retrospectively." [Calder 
V. JBull^ 3 Dallas, 386 ; Fletcher v. PecJc^ 6 Cranch, 8'/ ; Ogden v. 
Saunders^ 12 Wheaton, 266; Satterlee v. Matthewson^ 2 Peters, 
380.) 

The first case on the subject is that of Calder v. JBull^ and it 
is the one in which the doctrine concerning ex post facto laws is 
most fully expounded. The court divides all laws which come 
within the meaning of that clause of the constitution into four 
classes — 

1st. Every law that makes an action done before the passing 
of the law, and which was innocent when done, criminal, and 
punishes such action. 

2d. Every law that aggravates a crime, or makes it greater 
than it was Avhen committed. 

3d. Every law that changes the punishment, and inflicts a 
greater punishment than the law annexed to the crime when 
committed. 

4th. Every law that alters the rule of evidence, and receives 
less or diffei-ent testimony than the law required at the time of 
the commission of the offense to convict the offender. 

Again, the court says, in the same opinion, that " the true 
distinction is between ex post facto laws and retrospective 
laws," and proceeds to show that, however unjust the latter 
may be, they are not prohibited by the constitution, while the 
former are. 

This exposition of the nature of ex post facto laws has never 
been denied, nor has any court or any commentator on the con- 
stitution added to the classes of laws here set forth, as coraino- 
within that clause of the organic law. In looking carefully at 
these four classes of laws, two things strike the mind as com- 
mon to them all — 

1st. That they contemplate the trial of some person charged 
with an offense. 

2d. That they contemplate a punishment of the person found 
guilty of such offense. 

Now, it seems to me impossible to show that the law in ques- 
tion contemplates either the trial of a person for an offense 
committed before its passage, or the punishment of any person 



130 APPENDIX. 

for such an offense. It is true that the act requiring an oath 
provides a penalty for falsely taking it. But this provision is 
prospective, as no one is supposed to take the oath until after 
the passage of the law. This prospective penalty is the only 
thing in the law which partakes of a criminal charactei*. It is 
in all other respects a civil proceeding. It is simply an oath of 
office, and it is required of all office-holders alike. As far as 1 
am informed, this is the first time in the history of jurisprudence 
that taking an oath of office has been called a criminal pro- 
ceeding. If it is not a criminal proceeding, then, by all the 
authorities, it is not an ex post facto law. 

No trial of any person is contemplated by the act for any 
past offense. Nor is any party supposed to be charged with 
any offense in the only proceeding which the law provides. 

A person proposing to appear in the court as an attorney is 
asked to take a certain oath. There is no charge made against 
him that he has been guilty of any of the crimes mentioned in 
that oath. There is no prosecution. There is not even an 
implication of guilt by reason of tendering him the oath, for it 
is required of the man who has lost everything in defense of 
the government, and whose loyalty is written in the honorable 
scars which cover his body, the same as of the guiltiest traitor 
in the land. His refusal to take the oath subjects him to no 
prosecution. His taking it clears him of no guilt, and acquits 
him of no charge. 

Where, then, is this ex post facto law which tries and punishes 
a man for a crime committed before it was passed ? It can only 
be found in those elastic rules of construction which cramp the 
powers of the federal government when they are to be exercised 
in certain directions, and enlarges them when they are to be 
exei'cised in others. No more striking example of this could be 
given than the cases before us, in one of which the constitution 
of the United States is held to confer no power on congress to 
prevent traitors practicing in her courts, while in the other it is 
held to confer power on this court to nullify a jsrovision of the 
constitution of the state of Missouri, relating to a qualification 
required of ministers of religion. 

But the fatal vice in the reasoning of the majority is in the 
meaning which they attach to the word punishment, in its 
application to this law, and in its relation to the definitions 
which have been given of the phrase, ex post facto laws. 



APPENDIX. 131 

Webster's second definition of the word punish is this : " In 
a loose sense, to afflict with punishment, etc., with a view to 
amendment, to chasten." And it is in this loose sense that the 
word is used by this court, as synonymous with chastisement, 
correction, loss, or suffering to the party supposed to be pun- 
ished, and not in the legal sense, which signifies a penalty 
inflicted for the commission of a crime. 

And so, in this sense, it is said that whereas persons who had 
been guilty of the offenses mentioned in the oath were, by the 
laws then in force, only liable to be punished with death and 
confiscation of all their property, they are by a law passed since 
these offenses were committed, made liable to the enormous 
additional punishment of being deprived of the right to prac- 
tice law ! 

The law in question does not in reality deprive a person guilty 
of the acts therein described of any right which he possessed 
before ; for it is equally sound law, as it is the dictate of good 
sense, that a person who, in the language of the act, has volun- 
tarily borne arms against the government of the United States 
while a citizen thereof, or who has voluntarily given aid, com- 
fort, counsel, or encouragement to persons engaged in armed 
hostility to the goverment, has, by doing those things, forfeited 
his right to appear in her courts and take part in the adminis- 
tration of her laws. Such a person has exhibited a trait of 
character wliich, without the aid of the law in question, author- 
izes the court to declare him unfit to practice before it, and to 
strike his name from the roll of its attorneys if it be found 
there. 

I have already shoAvn that this act provides for no indictment 
or other charge, that it contemplates and admits of no trial, and 
I now proceed to show that even if the right of the court to 
2:)revent an attorney, guilty of the acts mentioned, from appear- 
ing in its forum, depended upon the statute, that still it inflicts 
no punishment in the legal sense of that term. 

Punishment, says Mr. Whaetoi^ in his Law Lexicon, is " the 
penalty for transgressing the law;" and this is, perhaps, as 
comprehensive, and at the same time as accurate a definition 
as can be given. Now Avhat law is it whose transgression is 
punished in the case before us ? None is referred to in the act, 
and there is nothing on its face to show that it was intended as 
an additional punishment for any offense described in any other 



132 APPENDIX. 

act. A part of the matters of which the applicant is required 
to purge himself on oath may amount to treason, but surely 
there could be no intention or desire to inflict this small addi- 
tional punishment for a crime whose penalty already was death 
and confiscation of property. 

In fact the word punishment is used by the court in a sense 
which would make a great number of laws, partaking in no 
sense of a criminal character, laws for punishment, and there- 
fore ex post facto. 

A law, for instance, which increased the facility for detecting 
frauds by compelling a party to a civil proceeding to disclose 
his transactions under oath would result in his punishment in 
this sense, if it compelled him to pay an honest debt which 
could not be coerced from him before. But this law comes 
clearly within the class described by this court in Watson v. 
Mercer, as civil proceedings which affect private rights retro- 
spectively. 

Again, let us suppose that several persons afflicted with a 
form of insanity heretofore deemed harmless, shall be found all 
at once to be dangerous to the lives of persons with whom they 
associate. The state, therefore, passes a law that all persons so 
affected shall be kept in close confinement until their recovery 
is assured. Here is a case of punishment in the sense used by 
the court for a matter existing before the passage of the law. 
Is it an ex post facto law ? And if not, in what does it differ 
from one ? Just in the same manner that the act of congress 
does, namely, that the proceeding is civil and not criminal, and 
that the imprisonment in the one case and the prohibition to 
practice law in the other, are not punishments in the legal 
meaning of that term. 

The civil law maxim, "iVemo dehet his vexari, pro una et 
eadein causa^'' has been long since adopted into the common 
law as applicable both to civil and criminal proceedings, and 
one of the amendments of the constitution incorporates this 
principle into that instrument so far as punishment affects life 
or limb. It results from this rule, that no man can be twice 
lawfully punished for the same offense. We haive already seen 
that the acts of which the party is required to purge himself 
on oath constitute the crime of treason. Now if the judgment 
of the court in the cases before us, instead of permitting the 
parties to appear without taking the oath, had been the other 



APPENDIX. 133 

W9J, here would have been the case of a person who, on the 
reasoning of the majority, is j^unislied by the judgment of this 
court for the same acts which constitute the crime of treason. 

Yet, if the applicant here, should afterAvard be indicted for 
treason on account of these same acts, no one will pretend that 
the proceedings here could be successfully pleaded in bar of 
that indictment. But why not? Simply because there is 
here neither trial or punishment within the legal meaning of 
these terms. 

I maintain that the purpose of the act of congress was to 
require loyalty as a qualification of all who practice law in the 
national courts. The majority say that the purpose was to 
impose a punishment for past acts of disloyalty. 

In pressing this argument it is asserted by the majority that 
no requirement can be justly said to be a qualification which is 
not attainable to all, and that to demand a qualification not 
attainable by all is a punishment. 

The constitution of the United States provides as a qualifica- 
tion for the offices of president and vice-president that the 
person elected must be a native-born citizen. Is this a punish' 
ijient to all those naturalized citizens who can never attain that 
qualification ? The Constitution of nearly all the states require 
as a qualification for voting that the voter shall be a white male 
citizen. Is this a punishment for all the blacks who can never 
become white ? 

Again, it was a qualification required by some of the State 
constitutions for the office of judge that the person should not 
be over sixty years of age. To a very lai'ge number of the 
ablest lawyers in any State this is a qualification to which they 
can never attain, for every year removes them farther away 
from the designated age. Is it a punishment? 

The distinguished commentator on American law, and chan- 
cellor of the state of New York, was deprived of that office by 
this provision of the constitution of that state, and he was 
thus, in the midst of his usefulness, not only turned out of office 
but he was forever disqualified from holding it again by a law 
passed after he had accepted the office. 

This is a much stronger case than that of a disloyal attorney 
forbid by law to practice in the courts, yet no one ever thought 
the law was ex post facto in the sense of the constitution of the 
United States. 
67 



134 APPENDIX. 

Illustrations of this kind could be multiplied indefinitely, 
but they are unnecessary. 

The history of the time when this statute was passed — the 
darkest hour of our great struggle — the necessity for its exist- 
ence, the humane character of the president who signed the 
hill, and the face of the law itself, all show that it was purely a 
qualification, exacted in self-defense, of all whcf took part in 
administering the goverament in a.ny of its departments, and 
that it was not passed for the purpose of inflicting punishment, 
however merited, for past offenses. 

I think I have now shown that the statu.te in question is within 
the legislative power of congress in its control over the courts 
and their officers, and that it was not void as being either a bill 
of attainder or an ex post facto law. ***** 



]sro. 20. 

CONSTITUTION OF THE UNITED STATES. 

We the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, 
provide for the common defense, promote the general wel- 
fare, and secure the blessings of liberty to ourselves and our 
posterity, do ordain and establish this constitution for the 
United States of America. 

ARTICLE I. 
Section 1. All legislative powers herein granted shall be 
vested in a congress of the United States, which shall consist 
of a senate and house of representatives. 

§ 2. The house of representatives shall be composed of 
members chosen every second year by the people of the several 
states, and the electors in each state shall have the qualifica- 
tions requisite for electors of the most numerous branch of the 
state legislature. 

No person shall be a representative who shall not have 
attained to the age of twenty-five years, and been seven years a 
citizen of the United States, and who shall not, when elected, 
be an inhabitant of that state in which he shall be chosen. 

Representatives and direct taxes shall be apportioned among 
the several states which may be included within this union, 
according to their respective numbers, which shall be determined 
by adding to the whole number of free persons, including those 



APPENDIX. 135 

bound to service for a term of years, and excluding Indians not 
taxed, three-fifths of all other persons. The actual enumeration 
shall be made within three years after the first meeting of the 
congress of the United States, and Avithin every subsequent 
term of ten years, in such manner as they shall by law direct. 
The number of representatives shall not exceed one for every 
thirty thousand, but each state shall have at least one repre- 
sentative ; and until such enumeration shall be made, the state 
of New Hampshire shall be entitled to choose three, Massa- 
chusetts eight, Rhode Island and Providence Plantations one, 
Connecticut five. New York six. New Jersey four, Pennsylvania 
eight, Delaware one, Maryland six, Virginia ten, North Caro- 
lina five. South Carolina five, and Georgia three. 

When vacancies happen in the representation from any state, 
the executive authority thereof shall issue writs of election to 
fill such vacancies. 

The house of representatives shall choose their speaker and 
other oflicers; and shall have the sole power of impeachment. 

§ 3. The senate of the United States shall be composed of 
two senators from each state, chosen by the legislature thereof, 
for six years ; and each senator shall have one vote. 

Immediately after they shall be assembled in consequence of 
the first election, they shall be divided as equally as may be into 
three classes. The seats of the senators of the first class shall 
be vacated at the expiration of the second year, of the second 
class at the expiration of the fourth year, and of the third class 
at the expiration of the sixth year, so that one-third may be 
chosen every second year ; and if vacancies happen by resigna- 
tion, or otherwise, during the recess of the legislature of any 
state, the executive thereof may make temporary aj)pointments 
until the next meeting of the legislature, which shall then fill 
such vacancies. 

No person shall be a senator who shall not have attained to 
the age of thirty years, and been nine years a citizen of the 
United States, and who shall not when elected, be an inhabitant 
of that state for Avhich he shall be chosen. 

The vice-president of the United States shall be president of 
the senate, but shall have no vote, unless they be equally divided. 

The senate shall choose their other officers, and also a presi- 
dent pro temjyore, in the absence of the vice-president, or when 
he shall exercise the office of president of the United States. 



136 APPENDIX. 

The senate shall have the sole power to try all impeachments. 
When sitting for that purf)ose, they shall be on oath or affirma- 
tion. When the president of the United States is tried, the 
chief justice shall preside : and no person shall be convicted 
without the concurrence of two-thirds of the members present. 

Judgment in cases of impeachment shall not extend further 
than to removal from office and disqualification to hold and 
enjoy any office of honor, trust or profit under the United States ; 
but the party convicted shall nevertheless be liable and subject 
to indictment, trial, judgment and punishment, according to law. 

§ 4. The times, places and manner of holding elections for 
senators and representatives shall be prescribed in each state 
by the legislature thereof; but the congress may at any time 
by law make or alter such regulations, except as to the places 
of choosing senators. 

The congress shall assemble at least once in every year, and 
such meeting shall be on the first Monday in December, unless 
they shall by law appoint a different day. 

§ 5. Each house shall be judge of the elections, returns and 
qualifications of its own members, and a majority of each shall 
constitute a quorum to do business ; but a smaller number may 
adjourn from day to day, and may be authorized to compel the 
attendance of absent members, in such manner and under such 
penalties as each house may provide. 

Each house may determine the rules of its proceedings, 
punish its members for disorderly behavior, and, with the con- 
currence of two-thirds, expel a member. 

Each house shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may in 
their judgment require secrecy, and the yeas and nays of the 
members of either house on any question shall, at the desire of 
one-fifth of those present, be entered on the journal. 

Neither house, during the session of congress, shall, without 
the consent of the other, adjourn for more than three days, nor 
to any other place than that in which the two hovises shall be 
sitting. 

§ 6. The senators and representatives shall receive a com- 
pensation for their services, to be ascertained by law, and paid 
out of the treasury of the United States. They shall in all 
cases, except treason, felony and breach of the peace, be privi- 
leged from arrest during their attendance at the session of their 



APPENDIX. 137 

respective houses, and in going to and returning from the 
same ; and for any speech or debate in either house, they shall 
not be questioned in any other place. 

No senator or representative shall, during the time for 
which he was elected, be appointed to any civil office imder the 
authority of the United States, which shall have been created, 
or the emoluments whereof shall liave been increased during 
such time ; and no person holding any office under the United 
States, shall be a member of either house during his continu- 
ance in office. 

§ 7. All bills for raising revenue shall originate in the house 
of representatives ; but the senate may propose or concur with 
amendments as on other bills. 

Every bill which shall have passed the house of representa- 
tives and the senate, shall, before it become a law, be presented 
to the president of the United States ; if he approve he shall 
sign it, but if not he shall return it, with his objections to that 
house in which it shall have originated, who shall enter the 
objections at large on their journal, and proceed to reconsider 
it. If after such reconsideration two-thirds of that house shall 
agree to pass the bill, it shall be sent, together with the objec- 
tions, to the other house, by which it shall likewise be recon- 
sidered, and if approved by two-thirds of that house, it shall 
become a law. But in all such cases the votes of both houses 
shall be determined by yeas and nays, and the names of the 
persons voting for and against the bill shall be entered on the 
journal of each house respectively. If any bill shall not be 
returned by the president within ten days (Sundays excepted) 
after it shall have been presented to him, the same shall be a 
law, in like manner as if he had signed it, unless the congress 
by their adjournment prevent its return, in which case it shall 
not be a law. 

Every order, resolution, or vote to which the concurrence of 
the senate and house of representatives may be necessary 
(except on a question of adjournment), shall be presented to the 
president of the United States ; and before the same shall take 
effect, shall be appi'oved by him, or being disapproved by him, 
shall be repassed by two-thirds of the senate and house of rep- 
resentatives, according to the rules and limitations prescribed 
in the case of a bill. 



138 APPENDIX. 

§ 8. The congress shall have power 

To lay and collect taxes, duties, imposts and excises, to pay 
the debts and jDrovide for the common defense and general wel- 
fare of the United States ; but all duties, imposts and excises 
shall be uniform throughout the United States ; 

To borrow money on the credit of the United States ; 

To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes ; 

To establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies throughout the United 
States; 

To coin money, regulate the value thereof, and of foreign 
coin, and fix the standard of weights and measures; 

To provide for the punishment of counterfeiting the secui'ities 
and current coin of the United States ; 

To establish post-ofiices and post-roads ; 

To promote the progress of science and useful arts, by secur- 
ing for limited times to authors and inventors the exclusive right 
to their respective writings and discoveries ; 

To constitute tribunals inferior to the supreme court ; 

To define and punish piracies and felonies committed on the 
high seas, and ofienses against the law of nations ; 

To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water ; 

To raise and sujDport armies, but no appropriation of money 
to that use shall be for a longer term than two years ; 

To provide and maintain a navy ; 

To make rules for the government and regulation of the land 
and naval forces ; 

To provide for calling forth the militia to execute the laws of 
the union, suppress insurrections and repel invasions ; 

To provide for organizing, arming and disciplining the militia, 
and for governing such part of them as may be employed in the 
service of the United States, reserving to the states respectively 
the appointment of the officers, and the authority of training 
the militia according to the discipline prescribed by congress ; 

To exercise exclusive legislation in all cases whatsoever, over 
such district (not exceeding ten miles square) as may, by cession 
of particular states and the acceptance of congress, become the 
seat of the government of the United States, and to exercise 
like authority over all places purchased by the consent of the 



APPENDIX. 139 

legislature of the state in winch the same shall be, for the erec- 
tion of forts, magazines, arsenals, dock-yards, and other needful 
buildings ; and 

To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other 
powers vested by this constitution in the government of the 
United States, or in any department or officer thereof. 

§ 9. The migration or importation of such persons as any of 
the states now existing shall think proper to admit, shall not be 
prohibited by the congress prior to the year one thousand eight 
hundred and eight, but a tax or duty may be imposed on such 
importation, not exceeding ten dollars for each person. 

The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when in cases of rebellion or invasion the public 
safety may require it. 

No bill of attainder or ex post facto law shall be passed. 

No capitation, or other direct, tax shall be laid, unless in 
proportion to the census or enumeration herein before directed 
to be taken. 

No tax or duty shall be laid on articles exported from any state. 

No preference shall be given by any regulation of commerce 
or revenue to the ports of one state over those of another : nor 
shall vessels bound to, or from, one state, be obliged to enter, 
clear, or pay duties in another. 

No money shall be drawn from the treasury, but in conse- 
quence of appropriations made by law ; and a regular statement 
and account of the receipts and expenditm-es of all public money 
shall be published from time to time. 

No title of nobility shall be granted by the TJnited States : 
And no person holding any office of profit or trust under them, 
shall, without the consent of the congress, accept of any present, 
emolument, office, or title of any kind whatever, from any king, 
prince, or foreign state. 

§ 10. No state shall enter into any treaty, alliance or confed- 
eration ; grant letters of marque and reprisal ; coin money ; emit 
bills of credit ; make anything but gold and silver coin a tender 
in payment of debts ; pass any bill of attainder, ex post facto 
law, or law impairing the obligation of contracts, or grant any 
title of nobility. 

No state shall, without the consent of the congress, lay any 
imposts or duties on imports or exports, except what may be 



140 APPENDIX. 

absolutely necessary for executing its inspection laws ; and the 
net produce of all duties and imposts, laid by any state on im- 
ports or exj)orts, shall be for the use of the treasury of the 
United States ; and all such laws shall be subject'to the revision 
and control of the congress. 

No state shall, without the consent of congress, lay any duty 
of tonnage, keep troops or ships of war in time of j)eace, enter 
into any agreement or compact with another state or with a 
foreign power, or engage in war, unless actually invaded or in 
such imminent danger as will not admit of delay. 

ARTICLE II. 

Section 1. The executive power shall be vested in a president 
of the United States of America. He shall hold his office dur- 
ing the term of four years, and, together with the vice-president, 
chosen for the same term, be elected, as follows : 

Each state shall appoint, in such manner as the legislature 

thereof may direct, a number of electors equal to the whole 

number of senators and representatives to which the state may 

be entitled in the congress ; but no senator or representative, or 

person holding an office of trust or profit under the United 

States, shall be apjDointed an elector : 

[* The electors shall meet in their respective states, and vote by ballot for two 
persons, of whom one at least shall not be an inhabitant of the same state with 
themselves. And they shall make a list of all the persons voted for, and of the 
number of votes for each; which list they shall sign and certify, aiid transmit 
sealed to the seat of the government of the United States, directed to the presi- 
dent of the senate. The president of the senate shall, in the presence of the 
senate and house of representatives, open all the certificates, and the votes 
shall then be counted. The person having the greatest number of votes shall 
be the president, if such number be a majority of the whole number of electors 
appointed; and if there be more than one who have such majority, and have 
an equal number of votes, then the house of representatives shall immediately 
choose by ballot one of them for president; and if no person have a majority 
then from the five highest on the list the said house shall in like manner choose 
the president. But in choosing the president, the votes shall be taken by 
states, the representation from each state having one vote ; a quorum for this 
purpose shall consist of a member or members from two-thirds of the states, 
and a majority of all the states shall be necessary to a choice. In every case, 
after the choice of the president, the person having the greatest number of 
votes of the electors shall be the vice-president. But if there should remain 
two or more who have equal votes, the senate shall choose from them by ballot 
the vice-president.] 

The congress may determine the time of choosing the elec- 
tors, and the day on which they shall give their votes; which 
day shall be the same throughout the United States. 

* This clause witliin brackets has been superseded and annulled by the 12th 
amendment. 



APPENDIX. 141 

No person except a natural born citizen, or a citizen of the 
United States, at the time of the adoption of this constitution, 
shall be eligible to the office of president; neither shall any per- 
son be eligible to that office Avho shall not have attained to the 
age of thirty-five years, and been fourteen years a resident within 
the United States. 

In case of the removal of the president from office, or of his 
death, resignation, or inability to discharge the powers and 
duties of the said office, the same shall devolve on the vice-presi- 
dent, and the congress may by law provide for the case of 
removal, death, resignation or inability, both of the president 
and vice-president, declaring what officer shall then act as presi- 
dent, and such officer shall act accordingly, until the disability 
be removed, or a president shall be elected. 

The president shall, at stated times, receive for his services, a 
compensation, which shall neither be increased nor diminished 
during the period for which he shall have been elected, and he 
shall not receive within that period any other emolument from 
the United States, or any of them. 

Before he enter on the execution of his office, he shall take 
the following oath or affirmation : 

" I do solemnly swear (or affirm) that I will faithfully execute 
the office of president of the United States, and will to the best 
of my ability, preserve, protect and defend the constitution of 
the United States." 

§ 2. The president shall be commander-in-chief of the army 
and navy of the United States, and of the militia of the several 
states, when called into the actual service of the United States ; 
he may require the opinion, in writing, of the principal officer in 
each of the executive departments, upon any subject relating to 
the duties of their respective o^ces, and he shall have power to 
o-rant reprieves and pardons for offianses against the United 
States, except in cases of impeachment. 

He shall have power, by and with the advice and consent of 
the senate, to make treaties, provided two-thirds of the senators 
present concur ; and he shall nominate, and by and with the 
advice and consent of the senate, shall appoint embassadors, 
other public ministers and consuls, judges of the supreme court 
and all other officers of the United States, whose appointments 
are not herein otherwise provided for, and which shall be estab- 
lished by law ; but the congress may by law vest the appoiut- 
68 



142 APPENDIX. 

ment of sucli inferior officers as they think proper in the presi- 
dent alone, in the courts of law, or in the heads of departments. 

The president shall have power to fill up all vacancies that 
may happen during the recess of the senate, by granting com- 
missions which shall expire at the end of their next session. 

§ 3. He shall from time to time give to the congress informa- 
tion of the state of the union, and recommend to their consid- 
eration such measures as he shall judge necessary and expedient ; 
he may, on extraordinary occasions, convene both houses, or 
either of them, and in case of disagreement between them with 
respect to the time of adjournment, he may adjourn them to 
such time as he shall think proper ; he shall receive embassadors 
and other public ministers ; he shall take care that the laws be 
faithfully executed, and shall commission all the officers of the 
United States. 

§ 4. The president, vice-president and all civil officers of the 
United States, shall be removed from office on impeachment for, 
and conviction of, treason, bribery, or other high crimes and 
misdemeanors. 

ARTICLE III. 

Section- 1. The judicial power of the United States, shall be 
vested in one supreme court, and in such inferior courts as the 
congress may from time to time ordain and establish. The 
judges, both of the supreme and inferior courts, shall hold their 
offices during good behavior, and shall, at stated times, receive 
for their services, a compensation, which shall not be dimin- 
ished during their continuance in office. 

§ 2. The judicial power shall extend to all cases, in law and 
equity, arising under this constitution, the laws of the United 
States, and treaties made, or which shall be made, under their 
authority ; — to all cases affecting embassadors, other public 
ministers, and consuls; — to all cases of admiralty and maritime 
jurisdiction; — to controversies to which the United States 
shall be a party ; — to controversies between two or more states ; 
— between a state and citizens of another state; — between 
citizens of different states, — between citizens of the same state 
claiming lands under grants of different states, and between a 
state, or the citizens thereof, and foreign states, citizens or 
subjects. 

In all cases affecting embassadors, other public ministers and 
consuls, and those in which a state be party, the supreme court, 



APPENDIX. 143 

shall have original jurisdiction. In all the other cases before 
mentioned, the supreme court shall have appellate jurisdiction, 
both as to law and fact, with such exceptions, and under such 
regulations as the congress shall make. 

The trial of all crimes, except in cases of impeachment, shall 
be by jury ; and such trial shall be held in the state where the 
said crimes shall have been committed ; but when not com- 
mitted within any state, the trial shall be at such place or places 
as the congress may by law have directed. 

§ 3. Treason against the United States, shall consist only in 
levying Avar against them, or in adhering to their enemies, giv- 
ing them aid and comfort. No person shall be convicted of 
treason unless on the testimony of two witnesses to the same 
overt act, or on confession in open court. 

The congress shall have power to declare the punishment of 
treason, but no attainder of treason shall work corruption 
of blood, or forfeiture, except during the life of the person 
attainted. 

ARTICLE IV. 

Section 1. Full faith and credit shall be given in each state 
to the public acts, records and judicial proceedings of every 
other state. And the congress may by general laws prescribe 
the manner in which such acts, records and proceedings shall be 
proved, and the effect thereof. 

§ 2. The citizens of each state shall be entitled to all privi- 
leges and immunities of citizens in the several states. 

A person charged in any state with treason, felony, or other 
crime, who shall flee from justice and be found in another state 
shall, on demand of the executive authority of the state from 
which he fled, be delivered up, to be removed to the state hav- 
ing jurisdiction of the crime. 

No person held to service or labor in one state, under the laws 
thereof, escaping into another shall, in consequence of any law 
or regulation therein, be discharged from such service or labor, 
but shall be delivered up on claim of the party to whom such 
service or labor may be due. 

§ 3. New states may be admitted by the congress into this 
union ; but no new state shall be formed or erected within the 
jurisdiction of any other state ; nor any state be formed by 
the junction of two or more states, or part of states, Avithout 



144 APPENDIX. 

the consent of the legislature of the states concerned, as well 
as of the congress. 

The congress shall have power to dispose of and make all 
needful rules and regulations respecting the territory or other 
j)roperty belonging to the United States ; and nothing in this 
constitution shall he so construed as to prejudice any claims of 
the United States or any particular state. 

§ 4. The United States shall guarantee to every state in this 
union a republican form of government, and shall protect each 
of them against invasion ; and on application of the legislature, 
or of the executive (when the legislature cannot be convened) 
against domestic violence. 

ARTICLE Y. 

The congress, whenever two-thirds of both houses shall deem 
it necessary, shall propose amendments tp this constitution, or, 
on the application of the legislatures of two-thirds of the several 
states, shall call a convention for proposing amendments, which, 
in either case, shall be valid to all intents and purposes, as part 
of this constitution, Avhen ratified by the legislatures of three- 
fourths of the several states, or by conventions in three-fourths 
thereof, as the one or the other mode of ratification may be pro- 
posed by the congress ; provided that no amendment which may 
be made prior to the year one thousand eight hundred and eight 
shall in any manner affect the first and fourth clauses in the 
ninth section of the first article ; and that no state, without its 
consent, shall be deprived of its equal suffi-age in the senate. 

ARTICLE VI. 

All debts contracted and engagements entered into, before 
the adoption of this constitution, shall be as valid against the 
United States under this constitution, as under the confederation. 

This constitution, and the laws of the United States Avhich 
shall be made in pursuance thereof; and all treaties made, or 
which shall be made under the authority of the United States, 
shall be the supreme law of the land ; and the judges in every 
state shall be bound thereby, anything in the constitution or 
laws of any state to the contrary notwithstanding. 

The senators and representatives before mentioned, and the 
members of the several state legislatures, and all executive and 
judicial officers, both of the United States and of the several 
states, shall be bound by oath or affirmation, to support this 



APPENDIX. 145 

constitution ; but no religious test shall ever be required as a 
qualification to any office or public trust under the United 
States. 

ARTICLE VII. 
The ratification of the convention of nine states, shall be suf- 
ficient for the establishment of this constitution between the 
states so ratifying the same. 

Done in convention by the unanimous consent of the states 
present, the seventeenth day of September, in the year of 
our Lord, one thousand seven hundred and eighty-seven, 
and of the independence of the United States the twelfth. 
In witness whereof we have hereunto subscribed our 
names. GEORG$: WASHINGTON, 

JPresident and Deputy from Virginia.* 



AMENDMENTS TO THE CONSTITUTION 

OF THE UNITED STATES OF AMERICA. 

Proposed hy Congress, and ratified by the Legislatures of the 
several States, ^:)t<r5wan^ to the fifth article of the original 
Constitution .\ 

ARTICLE L 

Congress shall make no law respecting an establishment of 
religion, or prohibiting the free exercise thereof; or abridging 
the freedom of speech, or of the press ; or the right of the peo- 
ple peaceably to assemble, and to petition the government for a 
redress of grievances. 



* The constitution was adopted on the 17th September, 1787, by the conven- 
tion appointed in pursuance of the resolution of the congress of the confedera- 
tion, of the 21st February, 1787, and was ratified by the conventions of the sev- 
eral states, as follows, viz. : 

Delaware, December 7th, 1787. 

Pennsylvania, December 12th, 1787. 

New Jersey, December 18th, 1787. 



Georgia, January 2d, 1788. 

Connecticut, January 9th, 1788. 

Massachusetts, February 6th, 1788. 

Maryland, April 28th, 1788. 



South Carolina, May 2.3d, 1788. 

New Hampshire, June 21st, 1788. 

Virginia June 26th, 1788. 

New York, ..July 26th, 1788. 

North Carolina,... November 21st, 1789. 
Rhode Island May 29th, 1790. 



t The first ten amendments to the federal constitution, were proposed by the 
first congress; were ratified by the several states in 1789-91, and became valid, 
December 15, 1791. There were two other amendments proposed, but not 
adopted, viz. : 

" 1. After the first enumeration required by the first article of the constitu- 
tion, there shall be one representative for every thirty thousand, until the 
number shall amount to one hundred, after which the proportion shall be so 
regulated by congress, that there shall not be less than one hundred represen- 
tatives, nor less than one representative for every forty thousand persons, until 
the number of representatives shall amount to two hundred, after which the 
proportion sball be so regulated by congress that there shall not be less than 
two hundred representatives, nor more than one representative for every fifty 
thousand persons. 

"2. No law, varying the compensation for the services of the senators and rep- 
resentatives, shall take eflect until an election -of representatives shall have 
intervened." 



146 APPENDIX. 

AKTICLE II. 
A well-regulated militia, being necessary to the security of a . 
free state, the right of the people to keep and bear arms, shall 
not be infringed. 

ARTICLE III. 

No soldier shall, in time of peace be quartered in any house, 
without the consent of the owner, nor in time of war, but in a 
manner to be prescribed by law. 

ARTICLE IV. 

The right of the peoj)le to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, 
shall not be violated, and no warrant shall issue, but upon 
probable cause, supported by oath or affirmation, and particu- 
larly describing the place to be searched, and person or things 
to be seized. 

ARTICLE V. 

No person shall be held to answer for a capital, or otherwise 
infamous crime, unless on a presentment or indictment of a 
grand jury, except in cases arising in the land or naval forces, 
or in the militia, when in actual service in time of war or public 
danger ; nor shall any person be subject for the same offense to 
be twice put in jeopardy of life or limb ; nor shall be compelled 
in any criminal case to be a witness against himself, nor be 
deprived of life, liberty or property, without due process of law ; 
nor shall private property be taken for public use, without just 
compensation. 

ARTICLE VL 

In all criminal prosecutions, the accused shall enjoy the right 
to a speedy and public trial, by an impartial jury of the state 
and district wherein the crime shall have been committed, 
which district shall have been previously ascertained by law, 
and to be informed of the nature and cause of the accusation ; 
to be confronted with the witnesses against him ; to have com- 
pulsory process for obtaining witnesses in his favor, and to have 
the assistance of counsel for his defense. 

ARTICLE VIL 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be pre- 
served, and no fact tried by a jury shall be otherwise re-exam- 



APPENDIX. 147 

ined in any court of the United States, tlian according to the 
rules of the common law. 

ARTICLE VIII. 

Excessive bail shall not be required, nor excessive fines 
imposed, nor cruel and unusual punishment inflicted. 

ARTICLE IX. 

The enumeration in the constitution, of certain rights, shall 
not be construed to deny or disparage others retained by the 
people. 

ARTICLE X. 

The powers not delegated to the United States by the consti- 
tution, nor i^rohibited by it to the states, are reserved to the 
states respectively, or to the people. 

ARTICLE XL* 

The judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by citizens of another state, 
or by citizens or subjects of any foreign state. 

ARTICLE XILf 

The electors shall meet in their respective states, and vote by 
ballot for president and vice-president, one of whom, at least, 
shall not be an inhabitant of the same state with themselves ; 
they shall name in their ballots the person voted for as presi- 
dent, and in distinct ballots the person voted for as vice- 
president, and they shall make distinct lists of all persons 
voted for as president, and of all persons voted for as vice- 
president, and of the number of votes for each, which lists they 
shall sign and certify, and transmit sealed to the seat of the 
government of the United States, directed to the president of 
the senate ; the president of the senate shall, in j)resence of the 
senate and house of representatives, open all the certificates 
and the votes shall then be counted ; the person having the 
greatest number of votes for president, shall be the president, 
if such number be a majority of the whole number of electors 
appointed ; and if no person have such majority, then from the 
persons having the highest numbers not exceeding three, on 
the list of those voted for as president, the house of representa- 
tives shall choose immediately, by ballot, the president. But 

* Recommended by the Third Congress, and became valid January 8, 1798. 
t Recommended by the Eighth Congress, and became valid September 25, 1804. 



148 APPENDIX. 

in choosing the president the votes shall be taken by states, the 
representation from each state having one vote ; a quorum for 
this purpose shall consist of a member or members from two- 
thirds of the states, and a majority of all the states shall be 
necessary to a choice. And if the house of representatives shall 
not choose a president whenever the right of choice shall de- 
volve upon them, before the fourth day of March next following, 
then the vice-president shall act as president, as in the case of 
the death or other constitutional disability of the president. 
The person having the greatest number of votes as vice-presi- 
dent shall be the vice-president, if such number be a majority 
of the whole number of electors appointed, and if no per- 
son have a majority, then from the two highest numbers on the 
list, the senate shall choose the vice-president ; a quorum for 
the purj)ose shall consist of two-thirds of the whole number of 
senators, and a majority of the whole number shall be necessary 
to a choice. But no person constitutionally ineligible to the 
office of president shall be eligible to that of vice-president of 
the United States. 

ARTICLE XIII. * 

Section" 1. l>reither slavery nor involuntary servitude, except 
as a punishment for crime whereof the pai'ty shall have been 
duly convicted, shall exist within the United States, or any 
place subject to their jurisdiction. 

§ 2. Congress shall have power to enforce this article by 
appropriate legislation. 

Amendmeistts to the Constitution of the United States, recom- 
inencUd hy Congress^ but not approved hy the required 
number of States. 

EECOMMENDED BY JOINT RESOLUTION OF CONGRESS, IN 1810. 

" If any citizen of the United States shall accept, claim, 
receive or retain any title of nobility or honor, or shall, without 
the consent of congress, accept and retain any present, pen- 
sion, office or emolument, of any kind whatever from any 
emperor, king, prince or foreign power, such person shall 
cease to be a citizen of the United States, and shall be incapa- 

* Recomraended by joint resolution of Congress, February 1, 1865. and declared 
a part of the constitution by a public declaration of the secretary of state, 
December 18, 1865, it having been adopted by twenty-seven states, viz. : Illinois 
Rhode Island, Michigan, Maryland, New York, West Virginia, Maine, Kansas, 
Massachusetts, Pennsvlvania, Virginia, Ohio, Missouri, Nevada, Indiana, Lou- 
isiana. Minnesota, Wisconsin, Vermont, Tennessee, Arkansas, Connecticut, 
New Hampshire, South Carolina, Alabama, North Carolina and Georgia, in the 
order here named. Oregon ratified the amendment on the 11th of November, 
1865. 



APPENDIX. 149 

ble of holding any office of trust or profit under them, or 
either of them." 

[Only twelve states adopted this amendment, viz. : Missouri, 
Kentucky, Ohio, Delaware, Pennsylvania, New Jersey, Ver- 
mont, Tennessee, Georgia, North Carolina, Massachusetts and 
New Hampshire, in the order named. In New York and 
Rhode Island it was rejected, and in Connecticut, South Caro- 
lina and Vermont no definite action was taken. See State 
Papers, 15th Cong., vol. iv. No. 76.] 

KECOJIMENDED BY JOINT RESOLUTION OP CONGRESS, MARCH, 18G1. 

ARTICLE XIII. 

"No amendment shall be made to the constitution which 
will authorize or give to congress the power to abolish or 
interfere, within any state, Avith the domestic institutions 
thereof, including that of persons held to labor or service by 
the laws of said state." 



AMENDMENT NOW PENDING FOR ADOPTION.* 

RECOMMENDED BY JOINT RESOLUTION OP CONGRESS, JUNE 16, 1866. 

ARTICLE XIV., 

Section 1. All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. No 
state shall make or enforce any law which shall abridge the 
privileges or immunities of the citizens of the United States ; 
nor shall any state deprive any person of life, liberty or prop- 
erty without due process of law, nor deny to any person within 
its jurisdiction the equal protection of the law. 

§ 2. Representatives shall be apportioned among the several 
States according to their respective numbers, counting the whole 
number of persons in each state, excluding Indians not taxed. 
But when the right to vote at any election for the choice of 
electors for president and vice-president of the United States, 
representatives in congress, the executive and judicial officers 
of a state, or the members of the legislature thereof, is denied to 
any of the male inhabitants of such state, being twenty-one 

* A certificate from the department of state, dated April 2ith, 1.S67, shows that 
twenty states had, on that date, notified their acceptance of tliis amendment, 
VIZ.: Connecticut, New Hampshire, Tennessee, New Jersey, Oregon, Vermont, 
New Yorlc, Ohio, lUmois, West Virginia. Kansas, Nevada, Missouri, Indiana, 
Minnesota, Rhode Island, Wisconsin, Pennsylvania, Michigan and Massa- 
chusetts. 

69 



150 APPENDIX. 

years of age, and citizens of the United States, or in any \vay 
abridged, except for participation in rebellion or other crime, 
the basis of representation therein shall be reduced in the pro- 
portion which the number of such male citizens shall bear to the 
whole number of male citizens twenty-one years of age in such 
state. 

§ 3. "No person shall be a senator or representative in con- 
gress, or elector of president, vice-president, or hold any office, 
civil or military, under the United States, or under any state, 
who, having previously taken an oath, as a member of congress, 
or as an officer of the United States, or as a member of any 
state legislature, or as an executive or judicial officer of any 
state, to support the constitution of the United States, shall 
have engaged in insurrection or rebellion against the same, or 
given aid or comfort to the enemies thereof: but congress may 
by a vote of two-thirds of each house remove such disability. 

§ 4. The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of 
pensions and bounties for services in suppressing insurrection 
or rebellion, shall not be questioned. But neither the United 
States, nor any state, shall assume or pay any debt or obligation 
incurred in aid of insurrection or rebellion against the United 
States, or any claim for the loss or emancipation of any slave ; 
but all such debts, obligations and claims shall be held illegal 
and void. 

§ 5. The congress shall have power to enforce, by appropriate 
legislation, the provisions of this article. 



INDEX. 



ADMINISTRATIOiT. page. 

Divers administrations but one authority, 102 

Democratic principle of, 128 

Questions of administrative right, not of authority, 129 

May be parceled out among several, 129 

State governments used as national agencies in internal administration,. . 129 

Discussions of administration of state and national government, 140 

Civil and military, contemplated by the constitutiou, 258 

"When such is appropriate, 259 

Both constitutional and necessary, 258, 259 

Not the same in peace and war, 277 

ADMIRALTY. 

Courts of, under the confederacy, 92 

Defects in respect to, 92 

ALIENS. 
The introduction of aliens under any regulation, etc., is a regulation of 

commerce, 19G 

Naturalization of (see naturalization), 204-214 

Rights of property in aliens regulated by states, 207, 203 

ALLEGIANCE. 

Defeasible and indefeasible allegiance discussed, 208-212 

Theory of allegiance in England, 208-210 

Theory in United States discussed, 210, 211 

Indefeasible allegiance incompatible with American theory, 211 

Comments upon the opinion of Mr. Rawle, 212 

Theory of subject's obligatory allegiance, etc., 212, 213 

In respect to naturalized and native born subjects 214 

AMENDMENTS OF THE CONSTITUTION. 

How to be made, 387, 383 

Effect of, etc., 389 

Denies sovereignty in states, 389 

Most of amendments in nature of bills of right, 390 

The abolition of slavery 397 

AMNESTY PROCLAMATION. 

See note to page, 325 

Authorized by act of congress, 325 

The several classes excepted from its operations, 325 



152 INDEX. 

APPELLATE JURISDICTION. pass. 

Of the suprems court, 366 

Element of appellate jurisdictiou, 365 

Modes of appeal, 365 

APPORTIONMENT. 

Of representation among the people, 126 

Ratio of representation — principle of, 127 

ATTAINDER, BILLS OF. 

Prohibited, 21& 

Defined as judicial legislation, 2'?8 

Bills of pains and penalties, what, . . . ■ 218 

ATTAINDER OP TREASON. 

"What is the meaning of attainder, 285-287 

A state or condition incident to judgment, etc., 285 

Forfeiture and corruption of blood incident to attainder, 286 

Difference between conviction and judgment, 289 

The constitution framed to do away some of these hardships ... 287 

Three classes of construction considered, 288-292 

ATTORNEY-GENERAL. 

As an officer of the administration, 330 

AUTHORS AND INVENTORS. 

To be secured in the use of their writings and inventions, 237 

AUTHORITY. 

By which the American colonies declared their independence, 1 

The foundation of the same declared 2 

Asserted by the people of the colonies, 1 

Of civil governments, 22 

The public authority consists in what, 28 

Governments instituted to exercise it, 29 

Where it emanates — its element, 29 

Highest public authority is that of the nation, 30 

Sovereignty the supreme authority, 31 

Governmental authority from the people, 4.3-50 

Authority of government and of people sometimes confounded (note), . . 47 

BANKING. 

Authority of states to permit private banking, 228 

Their notes may circulate as money, 228 

But are not legal tender, 228 

BANK PAPER. 

Congress may authorize the issuing of, as currency, 227 

See currency, money, etc. 220-232 



INDEX. 153 

BANKRUPTCY. page. 

Vlhy the power in respect to was given to congress, 214, 215 

"Webster's discussion in Ogden v. Saunders (12 "Wheat., 247), 215 

General object of the law of banlcruptcy, 215 

Authority involved (absolving legal obligations), 216 

Not possessed by mere local governments, etc., 216 

Power committed to congress, 211 

Limitation of state authority in respect to, 218 

BILLS — to he enacted. 

Each house of congress can originate bills, 162 

Except revenue bills, 162 

President to approve and sign bills before they become law, 1 63 

Or to return them with his objections, 163 

Bills of attainder, what — discussed, 27S 

BILL OF RIGHTS. 

Amendments of constitution, in the nature of, 390 

Bill of rights defined, 391 

Not so applicable to democracies, 391 

Religious freedom not to be interfered with, 391 

Right of the people to keep and bear arms not to be infringed, 394 

Right to be secure in house, person and papers, not to be violated, 395 

Rights in prosecutions for crimes, etc., enumerated, 395 

BOOKS, "WRITERS OF, Etc. 

Authors of, to be secured by copyright, etc., 23t 

CABINET OFFICERS. 

Of the president, 329 

CAPITATION AND DIRECT TAXES. 

To be laid in proportion to the census or enumeration, 292 

CASE. 
"What constitutes a case, giving the supreme court jurisdiction, etc., dis- 
cussed, 360-363 

To all cases of law and equity, 364 

CITIZENS. 

State citizens as such have no national status, 79 

State authority subordinate, etc., 51 

Double citizenship, 80 

Interests of state and national, not adverse 80 

Unite in same individuals, ■ 80 

Every state citizen is likewise a national one, 194, 37 1 

Is politically and potentially present in every state, etc., 194 

Entitled to all privileges and immunities of a citizen, etc., 194 

Two classes of citizens in United States, 204 

Naturalization of aliens, 204 

Citizens of the state are citizens of the nation, 371 

And are to have privileges and immunites etc., 371-372 



154 INDEX. 

CHIEF JUSTICE. page. 

To preside over the senate on trial of impeachment of president, 153 

COIN". 

See money — coining money, etc., 220 

COININa MONEY. 

The power of, is in congress, , 220 

In what the act consists, 221-223 

May select any substance to receive the stamp, 221 

Value of, depends upon the authority, etc 221,222 

Power of United States as a nation to coin money, 223 

Conferred upon congress plenary autliority to coin money, 224 

The object of this grant of power to coin money, 225 

COLONIES. 

People of, claim nationality througli Great Britain (note), 44 

The people, in declaring their independence, acted in virtue of their author- 
ity as men, 44 

Acquired a united, not a separate nationality, 46 

COMMANDER-IN-CHIEF. 

The president as, 252 

Powers incidental thereto, 253 254 

Not increased by attaching to the presidential oEfice, 255 

Exigency powers of, 256 

When justified in the proclamation of martial law, 262 

European law on the subject, 262 

May suspend the privileges of habeas corpus 275 

President as commander-in-chief, 340 

Derives no additional strength from his executive office, 340 

As commander-in-chief he is amenable to law 341 

His authority to re-adjust the political relations of the rebellious states, 

discussed, 341-344 

His authority questioned, 342 

COMMERCE. 

Power of congress over commerce , 186-193 

Meaning and extent of the term commerce, 186 

What the power conferred embraces, 186, 187 

Basis of the right to regulate commerce, 187 

Its duty in respect thereto, 187, 188 

The regulations of commerce extends to every species of intercourse, etc., 189 

Among the several states, 189 

Defined as including what, 190 

The nature and effect thereof, 190 

What not included, etc., 190 

This power is exclusive in congress, 191 

See authorities in note, 191 

Right of states in respect to masters of vessels, discussed, 192 

City of New York v. Miln, (11 Pet., S. C. Rep., 102), 192 



INDEX. 155 

COlili^RCE— Continued. page. 

Certain fallacies of tlio court, etc, 193, 194 

Test of what a state may do, etc., 194 

If one slate may prevent immigration all may, 194 

This principle illustrated by history (note), 195 

Introduction of aliens or citizens as commerce, 196 

Discussion of the Passenger case (7 How., 2S3), 196-199 

Obstruction of a navigable stream by a state, 199 

What constitutes a navigable stream -withia the requirements of com- 
merce, 199, 200 

Extends to regulation of navigation, 201 

See authorities enumerated 201 

Also seamen, 201 

With Indian tribes 202, 203 

COMPROMISES OP THE CONSTITUTION. 

In what they consist, 1^2 

Migration clause, a compromise, 267 

CONCURRENT POWERS. 

See powers, T3 

CONFEDERATION. 

Defects of (notes), 90, 91 

Lack of power to execute, etc., 91 

Could exercise no authority (note), 91 

Could not execute justice 92 

In respect to prize tribunals, 92 

In respect to fulfillment of treaties, 93 

Or payment of public creditors " 93 

Inter-state difficulties, 93 

CONGRESS. 

As the legislative authority of the nation, 119 

How constituted, 119 

Times, places and manner of holding elections, 120 

Powers in such respects, 120 

Qualification of members of the house, 124 

Power of, to prescribe qualification of electors, ] 23 

To prescribe the time and place for holding elections 123 

To hold local agencies of administration accountable, 123 

To assemble every year, 153 

Each house of, independent of the other, 153 

Eacli house judge of the returns and qualification of its own members,. . 153 

Power to punish for contempts, 153 

Times, places and manner of holding elections may be determined by 

congress, 154: 

Each house to keep a journal, etc., 154 

Compensation for their services, 154 

Legislative powers and duties of, etc., 155 

Has the supervision of the other departments, 156 



156 IITDEX. 

CONGRESS— Confewed pagk. 

Express powers of, ITI 

To lay and collect taxes, etc., 171-180 

To borrow money, 185 

To regulate commerce, , 186-193 

Naturalization, power of congress, etc., 204-214 

Power in respect to bankruptcies, 214-220 

Power of, to coin money, 220-232 

To punish counterfeiting, 229 

To fix standard of weights and measures, 228 

To establish post-offices, etc., ' 232 

"War powers of, 244 

CONSCIENCE. 
In matters of conscience nations must act upon their individual responsi- 
bility, 38 

CONSTITUTION. 

What forms the constitution of government, 28 

Preamble of, considered 53-83 

How formed and ratified (see note), 54 

Government instituted by it, 54. 

Preamble — " we the people," 83 

" More perfect union," discussed, 86-90 

"What was implied therein, 87, 88 

" To establish justice," discussed, 90 

Each of the objects named in the preamble, 86-104 

Constitution of the United States enumerates subjects of general juris- 
diction, and why, .• 175-179 

Gives general government full powers over enumerated subjects, 179 

Over the power of general taxation, 190-182 

Mode of administration in peace and war not the same under the consti- 

tu,tion, 277 

CONSTRUCTION. 

See interpretation, rules of, 65-75 

Remarks on construction of power to lay and collect taxes, etc, 171-180 

Construction from the prohibitions of the constitution, 266 

CONTEMPTS. 

Each house has authority to punish for, 153 

See Anderson v. Dunn (note), 153 

CORNING, ERASTUS, AND OTHERS. 
To President Lincoln respecting Vallandigham, 271 

CORPORATIONS. 

States as political corporations, 36 

United States as a corporate nation, 41,42 

COUNTERFEITING. 

Congress may provide for punishing for, 229 

This power is exclusive in congress, 230 



INDEX. 157 

COUNTERFEITING— Confmwecf. page. 

But states may punish for the cheat, 231 

Coimterfeitiug an offense against both state and national administration, 232 

CREDITORS. 
Pubhc creditors under the confederation, 93 

CRIMES. 
Committed on the high seas, 23t 

CURRENCY. 

Power of congress over, etc., , 220-232 

See money — coin — coining money, etc., 220 

Necessity for, in time of great public expenditures, 223, 224 

Congress has plenary power over the subject, 225 

DEMOCRACY. 

Authority is from the people 46 

United States a democracy 46, 41 

Sovereignty inherent i:i the people, 47 

Authority of government confounded with the authority of the people 

(note), 47 

The democratic principle in state and national administration (also note), 102-128 

Equality of representation a principle of, 127 

In the source and administration of governmental authority, 300 

In source — people are sovereign, 300 

In administration — those administer who are to be affected by it, 300 

DEPARTMENTS. 

Of government, legislative, executive, and judicial, 60-63 

Each act in virtue of the sariie sovereign authority, 63 

The limitations of each, 63 

The sphere of each (see note), 62-64 

Definition by Webster (see note), 62 

Legislative department of United States, 105-137 

On the several departments, 105 

Distinction between legislative and judicial, 106 

Constitution of the legislative, 106 

Constitution of the judicial, 107 

Character of each, 1 06, 107 

DIRECT TAXES. 

Must be apportioned according to census returns, 180 

Indirect taxes must be uniform, etc., 180 

DISABILITY. 

Of the president discussed, 354-356 

What amounts to, should be determined by law, 354 

DUTIES. 

Power of congress to lay and collect, 171 

Por what purpose, etc., 171 

70 



158 INDEX. 

ELECTIONS. PAGE. 

Of members of house, 113 

Qualifications of, how determined 113 

National government should determine the qualifications, etc., 113 

Political rights of, etc., how determined, 114 

ELEMENT. 

Constituent element of the imion, 53 

A constituent element — what (note), 53 

EXCISES. 

Power of congress to lay and collect ITI 

Difierent constructions as to the objects, 172 

EQUALITY. 

The natural equality of all men defined and supported, 11-16 

Natural equality of nations, 30-36 

EXECUTIVE OFFICE. 

Sovereignty therein — what, 62 

EXIGENCY POWERS. 

Of the commander-in-chief, 25G 

Theiir character, 25G 

EXPORTATIONS. 

No tax or duty to be laid upon, discussed, 292 

EX POST FACTO LAW. 

Prohibited by constitution, 27S 

"What is meant by, 270 

EXPRESS POWERS 

Of congress, 171 

To lay and collect taxes, etc., 171-180 

To borrow money, etc., 1S5 

Theory upon which the general powers of the government are to bo 

discussed, 1S8 

EXTERNAL SOVEREIGNTY. 

Incident to nationality, 60 

The sphere of its exercise, 60 

What pertains to, 76 

Intention of the people inferred, 76 

See also note, 76 

FEDERAL. 

Our government not federal, 145 

In no sense a union of political governments, 145 

No inherent authority in the states, 146 

States as political institutions have no voice In general governments 146 

FELONIES. 

Committed on the high seas 237 



INDEX. 



159 



FOREIGN JUDGMENTS. page. 

Effect of, etc., discussed 270 

FRANCHISE. 
Political franchise, discussed, 114-119 

FUGITIVES FROM JUSTICE. 
To be delivered up on demand of the executive, etc 372 

FUGITIVES FROM SERVICE OR LABOR. 

Construction of that clause discussed, STS-BTS 

Decision of Supreme Court in Pennsylvania against Prigg, examined,. .STS-STg 

GENERAL AND STATE GOVERNMENTS. 

Over same territory and people, 80 

Their relation, and the structure of each 80-81 

Decision of subjects of jurisdiction, gi 

How distinguislied (see note), 81 

Why tiiey were tluis distinguished, 81 

Neither primary in respect to the other, 82 

Structure of each, 82 

Necessity for, to secure the objects named in the preamble of the consti- 



tution. 



.86-104 



Parts of the same national system, 103 111 

Discussions respecting, j^q 

Both parties desired same tiling, 141 

Reason for embarrassments, etc., ... 141 

Supposed incompatibility of tlie two classes of governments not real, . . . 141 

Same people to administer both, 142 

Same authority to be administered, 142 

Same interests to be promoted and protected, 142 

Neitlicr centralization on one hand, nor diffusion on the other, 142 

Jurisdiction of each, 140 

Not partly federal and partly national, I45 

States administer by national authority 17g 

GOVERNMENT. 

An institution of society for administering the public authority, 22-29 

Tlie basis of its authority, 93 

Originate in necessity, ^ 93 

An institution of civil society, 28 

Distinction between government and society 29 

The nature of governments and their rights, 29 

Different forms of — determined by society, 30 

Government is an institution of the people, 47 

Has no inherent autliority (55 note), 47 

Has only authority of administration, 43 

Subject to the authority of the people, 43 

United States as a government, 53 

Definition of government of United States, 54 

Distinction between the goveniment and the nation, 64 



160 INDEX. 

GOVERNMENT— Continued. page. 

See also note on same, 54 

Authority derived from the people, 55 

Instituted for their use to the people, etc. (note), 55 

How it exercises supreme authority, 56 

National government designed to be permanent, 56 

Powers of, sufficient for national purposes, 57 

Instituted by sovereign authority, 58 

General and state, parts of same system 103 

Have only admiuistrative authority, 143 

Corporate instruments for the admistratiou of the public authority,. . . . 143 

States administer by national authority, 176 

GOVERNMENT OP THE UNITED STATES. 

A body corporate and politic, 58 

IIow created, 58 

In what it consists, 58 

Supreme within its sphere, 5D 

Origin of, considered, 83 

Neither a consolidated government or a confederacy, 85 

A national government of the people, 85 

Necessary to establish justice, 91 

Prior to, had no national tribunal (note), 94 

Necessary to secure objects named in preamble, 86-104 

Necessarily independent of other governments, 122 

In what sense it is one of delegated powers, 175-177 

In what sense the states have residuary powers, 175 

Has full powers over subjects committed to its jurisdiction, 175 

Powers of the general government to be executed by the nation, 175 

People of the nation present in the general government, 176 

Why the subjects of jurisdiction were enumerated, 177 

Theory upon which its general powers are to be discussed, 183 

"War powers of, 244-266 

Exclusive jurisdiction over territories, etc., 264 

GOVERNOR, PROVISIONAL. 

Appointed by president, 342 

Military, most proper, 343 

. HABEAS CORPUS. 

"Writ of, when and by whom to be suspended, discussed, 256-257 

Not to be suspended except when, 269 

President Lincola to Erastus Corning and others, 271, 272 

Manifesto of the war department on the subject, 272 

Opinion, of Judge Stewart, on application of Vallandighani for writ — note, 274 

"When to be suspended by commander-in-chief, 275 

"When by congress, 275 

HAPPINESS. 

Man's right to pursue after happiness, 19 

In what happiness must consist, 19-21 



INDEX. 161 

HOLDEIvr, WILLIAM W. page. 

Made provisional governor of North Carolina (see note), 324-342 

HOUSE OF REPRESENTATIVES. 

How composed, etc., 113 

An independent branch of the legislature, 103 

Its character, etc., 108 

"What it represents, 109 

Qualification of electors of, 113 

Qualiflcalion of members, 124 

Constilulion of house, represents all trades, etc., 124 

Unfavorable to judicious or wise legislation, 124 

For what constituted, 124 

The mass of people have not the culture or discipline necessary for wise 

legislation, 125 

People interested in wise legislation more than in the question, who admin- 
ister, 126 

Presence of tlie people in, 126 

The apportionment of representatives, 126 

Has sole power of impeachment, 130 

IMPEACHMENT. 

House has sole power of, 130 

The nature of, 130 

Impeachments must be tried, 131 

Apply to public characters alone, 131 

Term " impeachment " is one of known definition 131 

Senate have sole power to try impeachment, 147 

When president is tried, chief justice to preside 152 

General powers in respect to, discussed, 132, 354,-5 

Constitution is silent as to mode of trial, and congress can provide for 

the same by law, 354 

IMPOSTS. 

Power of congress to lay imposts, 171 

Different constructions as to the objects, etc., 172 

See note on tliis subject, 172 

No importance to be attached to the one or the other of these theories^. 172-174 

INDEPENDENCE. 

Effect of the declaration of, etc., 42 

By the people of the colonies (note), 41, 42 

INDIAN TRIBES. 

Regulation of commerce with, 202 

How considered under British government, 202 

Under the confederation ' 202 

Their property in the soil, remarks upon, 202. 203 

Their prospects, etc., 203 

INDIRECT TAXES. 
Must be uniform throughout the United States, 180, 181 



162 INDEX. 

INTERNAL SOYEREIGNTT. page. 

Incident to a nation, its police power, 60 

The sphere of its exercise 60 

Does not pertain to the government (note), 60 

But to tlie people, etc. (note), 60 

Three departments of administration, 61 

Legislative, judicial and executive, •. 61 

INTERNATIONAL. 

Duties and powers of the president, 64 

INTER-STATE ADMINISTATION. 

Full faith and credit to be given to the public acts, etc., of each state, . . . 369 

Validity of judgments, etc., discussed, 370 

Rights of citizens in each state, 371 

Fugitives from justice, 372 

INTERPRETATION. 

Rules of, 65-75 

Meaning of the constitution, how to be ascertained. 65 

Maxims of interpretation, 6G 

Not to interpret where interpretation is not needed, 66 

End sought by interpretation, 67 

Follow natural meaning of language if possible, 67 

"When this can be done, 67 

Where it leaves the intent doubtful, 67 

How doubtful words and expressions to be understood, 68 

What circumstances to be consulted, 68 

Of strict and liberal construction 69 

Close and free construction, 69 

Application of these principles, 70-72 

Remarks on construction of power to lay taxes, etc., 171-180 

Construe a power so as to obtain the end proposed 180 

JEFFERSON, THOMAS. 

On the purchase of the Louisiana Territory, p. 35, note 251, 313 

JUDGE. 

Judge should not be selected on the principle of representation, 148 

He belongs to the commonwealth, 151 

Limitation of his duty, ... 158 

His duties and powers discussed, 356 

Of the supreme and inferior courts, how appointed, ^i . . 358 

Tenure of office, what, 358 

Congress may abolish court and thus, in effect, remove judges from office, 

etc., 358 

Judges of inferior courts do not include judges of territorial courts 

(note), 359 

JUDGMENTS. 

Full faith and credit to be given in the several states, 369, 370 

Are to have the same effect in each state as where rendered, ......... 371 



INDEX. 163 

JUDICIAL POWERS. PAGE. 

Tested in certain courts, 356 

Definition of judicial powers 356, 357 

Jus dicere, non jus dare, 357 

Compared witli legislative, 357, 358 

Judges of supreme and inferior courts, how appointed, 358 

Tenure of their oflBce, 358 

Eemoved by repealing law establishing court, etc., 358 

Extend to cases arising under constitution, etc., 300 

"What constitutes a case, discussed. 360 

JUDICIAL OFFICE. 

Sovereignty in that department, what, Gl 

What pertains to tlie judiciary, CI 

Separate from legislative and executive, 105 

Reasons for separation, 106 

Constitution of the judicial ofiBce, 107 

Discussed, 356-362 

JURY. 

Trials of all crimes to be by jury, 366 

Except impeachments 366 

Except under martial law, 366 

Right of trial by, bulwark of liberty, 367 

Remarks of Justice Smith upon province of jury, 367 

JURISDICTION. 

Over same terrritory and people, 80 

State and untioual governments, 81 

Neither primary in respect to the otlier, 82 

Jurisdiction of each government, 143 

Of congress, etc., 160 

General government funds, its jurisdiction in subjects enumerated, 185 

State government in subjects not enumerated, 175 

Why subjects of general jurisdiction enumerated, 177, 178 

Reply to Judge Story thereon, 178 

Over the territories, arsenals, dock yards, etc., of the United States, 264 

General jurisdiction of national judiciary, 360 

In wliat cases, 360 

What constitutes a case, 360, 361 and note. 

As explained by Chief Justice Jay, 363 

To all cases in law and equity 364 

Appellate jurisdiction of supreme court, 366 

LEGAL OBLIGATIONS. 

What constitute legal obligations, 226 

How they may be discharged, 226 

DiTferonce between legal and moral, , 216 



164 INDEX. 

LEGAL TElsTDER. page. 

Import of the term (see note), 22S 

Sovereignty determines what shall discharge legal obhgations (note),. . . 226 

Prohibition upon the states, 228 

LEGISLATIVE DEPARTMENT. 

Of the general government 105 

The independence thereof, 106 

Divided into two distinct branches, 1 08 

The reason for such division, 109 

"What the house represents, 109 

What the senate represents, 109 

Both houses subject to their own laws, 110 

Each house, how composed, 109 

Senate does not represent state government, Ill, 112 

Not a representative (popular) body, 112 

Congress the national legislature, 119 

Legislative powers and duties of congress 155 

Sovereignty present in the legislative department, 156 

True mission thereof, 156 

Its large discretion and duty, 15t 

Reasons therefor not applicable to other departments, 157 

Supremacy of this department, 158 

This authority belongs to the people 159 

Has plenary authority over subjects committed to its jurisdiction, 159 

Has unhmited discretion over Such subjects, 160 

No danger from this department, 161 

"Why it will not abuse its authoritj'-, 161 

Each house of congress has equal authority in making laws, 162 

Revenue bills to originate in the house, 162 

LEGISLATURE. 

The legislative office, what, 61 

Sovereignty therein, what, 61 

LA"W OP NATIONS. 

Crimes against, punishable, etc., 241 

Offenses against, considered, 241-244 

LETTERS OP MARQUE. 

Congress have power to grant, 244 

Defined, 263 

LETTERS OP REPRISAL. 

Congress have power to issue, - 244 

Defined, 263 

LIBERTY. 

Liberty defined, 18 

The extent thereof, hov/ ascertained, 18 

"What this right implies, IS, 19 

Civil liberty defined, 26, 27 

See notes on this point, 26, 27 



INDEX 165 

LIMITATION OF POWER. PAGE. 

"What is meant by special and residuary powers, 175 

Subjects of general jurisdiction enumerated 175 

Remainder, etc., left to states, 175 

LINCOLN, PRESIDENT. 

To Hon. Erastus Corning and others, 271, 276 

See note, 276 

LIVINGSTON, MINISTER TO FRANCE. 
On the Louisiana Territory 35, 250, 251 

LOUISIANA TERRITORY. 
The purchase of, 35, 250, 313 

MAN. 

All men are created equal — in what sense, 11-13 

Natural rights indicated by natural necessities, 11 

Doctrine of natural equality of all men — what implied, 15 

Life, liberty and the right of property belong to all, 16 

The argument by whicli it is maintained, 16-22 

' Natural liberty defined, 18 

What is implied in man's right to the enjoyment of perfect liberty, 18 

His right to tlie pursuit of happiness, 19 

Iq what his happiness must consist, , 19-21 

See note, 20 

His right to property indicated, 20 

Constituted for society, 23 

MARTIAL LAW. 

How proclaimed, and for what cause, 258 

Different mode of administering, etc., 258 

To be adopted when the civil mode is inadequate, 258 

It is a constitutional administration, -258 

Constitution contemplates it, 258, 259 

MARSHALS. 

How appointed, 330 

Act under special warrants, etc., 330 

MIGRATION AND IMPORTATION. 

Of certain persons not to be prohibited, etc., 2G6 

Construction of the clause to regulate commerce, 2G7 

Meaning of migration as applied to the States, 267, 2G8 

The clause a compromise, etc., 267 

MONET. 

Power of congress to borrow money, 185 

Power of congress to coin money, 220-233 

To regulate the value of money, 221 

What constitutes money and its value, 221 

Currency value ig in the stamp, 221 

71 



166 INDEX. 

liOH^EY-^ Continued. page. 

Difference between money and commodity, 221 

The power to coin money involves tlie exercise of sovereign powers,. . . . 222 

Gold, silver, copper and paper money, 222 

Money as a need of society, should be provided, . . . ; 223 

See note to page, , 225 

NATION. 

The largest civil society, 30 

The higliest public authority, 30 

Their natural independence and necessary sovereignty, 31 

Essentials to the right of nationality, 32 

.The limitation of such right, 33 

Should be so located and estabhshed as to secure permanence and safety, 33 

President Lincoln's observations (note), 34 

Duty of self-preservation, etc., 35 

Jefferson's position (note), 35 

Webster's ditto 35 

Independence of nations, 38 

Obligations — perfect and imperfect (note), 38, 39 

Treaty stipulations, rights in respect to, 39 

The United States as a nation, 41 

"When it became a nation, 42 

Authority to institute a government, 43, 44 

But one sovereignty in, etc., 103 

NATIONAL GOYERNMENT. 

General powers of, etc., 65 

Powers delegated by ihe people, not by the states, "TO 

People committed all national interests to the general government, *ll 

Instituted the government complete in all its parts, 11 

Invested it with authority to administer in every department, • . . . 11 

The sole agency for international intercourse, 18 

Exercise of external sovereignty "76-79 

Also internal sovereignty, '79-81 

Necessary to secure objects named in preamble, 86-104 

NATURAL RIGHTS. 

Indicated by natural necessities, 11 

To life, liberty, property, the argument, 16-22 

To the pursuit of happiness, 19 

To government, 22 

Surrender of, on coming into society, 24 

Such doctrine discussed, 24-28 

NATURALIZATION. 

Power of congress in respect to, discussed, 214-214 

"Why the power given to congress, 204 

How under the confederation 204 

Effect of naturalization, 205 



INDEX. 167 

^A.TJJB.ALlZk.TIO'S— Continued. page. 

"What rules should be adopted in respect to, 205 

Opiuious in respect to, discussed, 206 

Is a mode by whicli an alien becomes a citizen, 207 

Indefeasible allegiance discussed, 201 

NAVIGATION. 
Included in the regulation of commerce, 201 

NECESSITIES. 

Natural necessities indicate natural riglits, 11, 12 

Evidence of man's right to exist and enjoy, etc., 11, 12 

For civil governments, 22 

For iiationalitj', '. 32, 33 

NEW ORLEANS. 

Ifartial law proclaimed by General Jackson 262 

Territory of, purchased from France during Jefferson's administration,. . 

pp., 35, 250, 313 

NOBILITY. 
No titles of, to be granted, 297 

NORTH CAROLINA. 
William W. Holdea made provisional governer of, 234-342 

OBLIGATIONS (LEGAL.) 

Perfect and imperfect obligations, 38 

Created by law, may be modified, etc., 216 

Distinction between legal and moral obligations 216 

Rule in respect to legal obligations, 217 

Congress can make uniform laws on subject of bankruptcj^, 217 

State can make no law impairing the obligation of contracts, 217 

Tins subject discussed etc., 217-220 

Limits of state authority in respect to, etc., 218 

OFFICES. 

Of the government-a corporation, 53 

Incidents of office, 58 

Autiiority of ofBcers are incidents of office, 59 

Like the King, " they never die",. 59 

Duties and powers of o£5ce and trusts, 59 

IIow to be executed, 59 

Mal-admiuistration in, a crime, etc., 59 

Presidential office, etc., 326 

Duties and powers pertaining to the same, 326-356 

Appointments to office by the president, 348 

Vacancies in, how filled during recess of senate, 349 

Removals from office by the president, discussed, 350 

Congress may regtilat^e its exercises, 350 

Report of a congressional committee upon removal, etc. (note), 351 

PAINS AND PENALTIES— BILLS OF. 
Distinct from bills of attainder, 278 



1C8 INDEX. 

PAEDONS AND EEPRIEVES. page. 

Power of the president to grant, discussed, 332-340 

Policy of pardons discussed, 333 

Extent of the power of the president, 333 

Mr. Justice Wayne in ex parte Wells, 334 

Chief Justice. Marshall in United States v. Wilson, 334 

Does not extend to impeachments, 339 

Nor to contempts of either house, etc., 340 

PEOPLE OF THE UNITED STATES. 

Who are included, etc., 86 

The purpose of their union, 86 

When they became a nation, • 41 

The democratic principle in state and national administration (see also 

note), 102 

Authority of, as a nation, 159 

People of the nation, and of the states the same, 17S 

Their interests the same, 178 

PERFECT OBLIGATIONS. 

The nature of (note), 38 

What are perfect obligations, 226 

To be enforced in all civilized countries, 226 

PIRACY. 

Power of congress to punish, , 237 

Definition of, etc., 238 

What amounts to piracy 238, 239 

Can it be committed by subjects of states at war. 239 

Pirates deemed to be out of protection of society, 240 

PIRATES. 

Who are pirates, 238, 239 

Out of protection of society, 240 

POLITICAL RIGHTS. 

Nature and origin of, - H^ 

Distinguished from civil rights, 114 

Source of political franchises, c 114 

Right conferred by the government, 115 

Rests in discretion, ■ 1^5 

No government is for unlimited suffrage 116 

Belong to society, 116 

By whom originally determined, 115 

Of state citizens, as such, 312-316 

Are derivative, and not inherent, 314 

Their origin or source, 214 

How conferred ^^^ 

Liable to forfeiture, • • •'^1'^ 

How forfeited— for what cause, 316 

Treason is political death, 316 



INDEX. 169 

POLITICAL niGUTS— Continued. page. 

Condition of a political corporation which has repudiated its allegiance,. 316 
Political rights have their existence only in loyalty to the enfranchising 

power, 324 

PORTS IN THE SEVERAL STATES. 

No preference to be given to, by any regulation of congress, 296 

The object of this provision, 296 

POST-OFFICES, POST-ROADS. 

Power of congress to establish, 232-236 

Yiews of President Monroe, considered, 232 

Construction of such power, 233-235 

The question of authority stated, .■ 236 

POWERS. 
Powers of the general government conferred by the people (note p. 71), 70-tl 

To be considered co-extensive with the terms of the grant, 12 

Doubtful words in a power, how to be construed, '?2 

When susceptible of two interpretations, '?2 

Concurrent powers of state and national governments, 73 

When exclusive in general government, * . 74 

Incompatability or repugnancy, 74 

Specification of particular powers does not exclude those not specified,. . 75 

Inferred power as a rule, etc., 75 

All national, etc., committed to general government, 75 

Special and residuary powers of tlie two governments, 175 

General government has full powers over the subjects enumerated, 175 

Why subjects of general jurisdiction, enumerated, 177 

Powers of general government not enumerated, 178 

Reply to Judge Story thereon (to lay taxes, etc.), 178 

To borrow money on the credit of the United States, 185 

To regulate commerce, 186-193 

In respect to naturalization, 204-214 

In respect to banlvruptcies, 214-220 

To coin money, 220, 232 

To fix standard of weights and measures, 228 

Of congress to provide for punishing counterfeiting, etc., 230-233 

To establish post-offices and post-roads 232-236 

War powers of general government, 244-206 

Of president of the United States, 252 

As commander-in-chief, 253,254 

As executive liead, etc., 253 

Exigency powers of the president, 256 

Civil and military administer the same authority, 258 

Only different mode of administration, 258 

PREAMBLE. 

Of the constitution considered 53-83 

" We, the people of the United States," 83-85 

" To form a more perfect Uuiou," discussed 86 



170 INDEX. 

TRKAUBLE— Continued. page. 

To establish justice, 90 

To insure domestic tranquillity, 94 

To provide for the common defense, 96 

To promote the general welfare, 97 

To secure the blessings of liberty, 99 

PREROGATIVE AUTHORITY. 

President has no prerogative authority, 323 

What is crerogative (see note), . .328-337 

PRESIDENT OF UNITED STATES. 

Bills to be presented to him for his approval 1 63 

His veto power considered, 1 64-1 69 

This power is liable to abuse, 170 

War powers of, considered, 252-260' 

As commander-in-chief, , 252 

As executive head of nation, 253 

Term of office, 326 

How elected, 326 

Time for electing determined by congress, 327 

Constitutional qualifications, 327 

When vice-pi'esident serves as president 327 

When congress provides by law who shall discharge the duties of, 327,328 

Oath of office, 328 

Duties and powers which attach to the office, 328 

He is chief executive of the nation, 328 

Has no prerogative authority (note), 328-331 

His duties and powers as chief executive, 329 

His cabinet officers ■ • • • 229 

Attorney-general and marshals 330 

Intrusted with executive administration, 330 

Is only an officer of the law, in the civil department, 331 

Is siibject to the law in his office, 331 

Cannot lawfully impose a policy upon the nation, 332 

His power to grant reprieves and pardons discussed, 332-340 

How to construe presidential powers discussed, 335 

Not to confound his powers with the prerogative powers of the king, 335 

As a mere executive he can reprieve or pardou only after conviction, 

discussed, 335. 330 

See as to power of king (note), 336-339 

Power does not extend to impeachments 339 

Nor to contempt of tlie house or senate, 340 

As commander-in-chief, 340 

His authority to reconstruct the rebel states, discussed 341-344 

His treaty-making authority, 344 

His appointing power, 348, 349 

His power of removals from office, discussed, 350 

Eia general duties and powers, * 351 



INDEX. 171 

PRESIDENT OF UNITED STATES,— Cordinued. page, 

Eequired to receive embassadors, etc., 353 

May be impeached by the house, etc., 354 

Wliat amounts to disability, discussed, 354 

PRESIDENTIAL. 

Duties and powers as such, 64 

Pertaining to the office, discussed, 326-356 

His cabinet officers, etc., 329 

PRINCIPLES. 

Fundamental, as the basis of American independence, 9 

Set forth by tlie declaration of independence, 9, 10 

All men created equal, what implied, 11-13 

Natural necessities are indications of natural rights, 11-13 

Doctrine of natural rights maintained, 16-22 

Origin and necessity for civil governments, 22 

Doctrine of surrender of natural rights on coming into society, discussed, 24 

Sucli doctrine defined, 24 

National sovereigutj' essential, etc., 31 

Highest authority is tJiat of the nation, 30 

Fundamental principles of national existence and administration, 3^-40 

Matters of judgment and conscience, 33 

Perfect and imperfect obligations (note), 38-39 

Democratic principle in state and national government, 102 

PROHIBITIONS AND RESTRCTIONS. 

Upon the general and state governments 266-297 

Important as manifesting llie understanding of those framing the consti- 
tution, 266 

Respecting the migration and importation of persons, 266 

Privileges of habeas corpus not to be suspended, 269 

No bills of attainder or ex post facto laws to be passed, 278 

In respect to capitation and direct taxes, 292 

Taxes on exportation, 292 

No preference to be given to particular state ports, 296 

Money must be drawn from the treasury only in consequence of appro- 
priations, etc., 297 

No titles of nobihty to be granted, 297 

PROPERTY. 

The right to property indicated, 20 

The philosophy of such right (note), 21 

PROTECTIVE TARIFF. 
See tariff, 180-184 

PROVISIONAL GOVERNORS. 

Appointed by the president, 342 

His authoritj questioned 342 



172 INDEX. 

RATIO. PAGE. 

Of representation among the states, 127 

Equality of, not exact, 127 

Not to infer state sovereignty therefrom, 128 

EEBELS. 

Unpardoned rebels have no political rights (see note), ■ 324 

Treason is political death, 324 

Any act proclaiming the treason of a political body proclaims the for- 
feiture, 324 

EEBELLIOX. 

Effect of, upon the status of states, etc., discussed, 316-322 

Governor Seymour's remarks, 277 

Erastus Corning and others, letter to President Lincoln, 271 

Protection against rebellion, etc., 386 

RELIGION, 

Congress to make no law respecting the estabhshment of religion, 391 

The question discussed, 391-394 

REPRESENTATIVES. 

In congress, how elected, 113 

For how long elected, 134 

Reasons for such limitation, 135 

Duty to re-elect faithful public officers, 136 

Qualifications of, 137 

REPRESENTATION. 

Equality of, an essential feature in a democracy, 127 

Applied to the states, not exactly equal, 127 

Principle of, not applicable to senate and bench 148 

REPRIEVES AND PARDONS. 
See pardons, 332-340 

REPUBLICAN FORM OF GOVERNMENT. 

The guaranty of the constitution discussed 383 

Tlie guaranty construed in the light of the American theory, 383 

Not to the states as political corporationp, but to the people, 384 

The term " renublican " in the constitution a perfect guarantj', 385 

RESIDUARY POWRRS. 

In what sense the states possess residuary powers, 175 

RESTRICTIONS. 

Upon the authority of congress, 160 

Bill of rights, 160 

REVENUE. 

Bills to raise a revenue to originate in the house, 162 

The reason therefor, 162 

Senate may amend such bills, 163 



INDEX. 173 

EIGHTS. PAGE. 

Natural rigliti?, how indicated, 11 

To vvliat applicable, 16-22 

Perfect rights or obligations (note), 38, 3D 

Imperfect rights or obligations (note), 38, 3D 

SCIENCE AND ART, 
Congress to promote, by securing to authors and inventors their inven- 
tions and writings, etc., 23T 

SEAMEN. 
Regulation of commerce, extends to government of seamen on board of 
vessels, etc., 201 

SECESSION. 

The right of, considered, : 320 

Tlie forcible attempt by a state, effect of, 320 

Forfeiture of its political life, 320, 321 

Cannot afiect the authority of the nation, but can forfeit its own, 320 

SENATE. • 

Branch of the legislature, 103 

Its general character, 109-138 

What it represents, lOD 

Does not represent the states as political institutions, 112 

For how long a term chosen, 138 

How classified, etc., 138 

Not a representative body 133 

Is continuous, 138 

Does not represent the states as poHtical bodies, 139 

Discussion upon the subject, 139 

Reasons for diversity of opinions, 140 

In what sense the senate represents the states, 143 144. 

Difference in the house, 1 44 

Its office as a branch' of the legislature, I44 

Represents the dignity, wisdom, etc., of state, 145 

Not federal in any sense 14g 

Wiiy the senate was chosen by the state legislatures HG, 147 

To try impeachments, make treaties, etc 147 

Principles of popular representation not applicable to senate, U7, 143 

Qualilications of senators, ! I49 152 

Number of senators, ^ ] 50 

Character of senate, 151 

Duration of term of ofSce, 151 

President of tlie senate, 152 

Semi-judicial body. 152 

To try all impeachments, 152 

SEYMOUR, GOVERNOR. 
Remarks at a public meeting in Albany on the arrest of Vallandigham 

(note) 211 

72 



174 INDEX. 

SLA.VEIIY AND SLAVES. page. 
The importation and migration of slaves not to be prohibited by con- 
gress prior to the year 1 808, 2G7 

The fugitive clause considered, 374 

Abolished by an amendment of the constitution, 39Y 

SOCIETY. 

Must establish its foundations in natural justice, 2G 

Must not abridge tlie natural liberty of its members 26 

lias no rights not in harmony with the rights of its individual members,. 27 

Civil government as a necessity of, 28 

Must establish a public authority, 28 

Largest society called nation, ." . . 30 

Wliat society entitled to rank as a nation, 32 

What essential to its moral right to nationality, 32 

The limitation of such right, 32 

SOVEREIGNTY. 

The supreme authority by which a state is governed 31-48 et seq. 

As an attribute of civil government, what, 31 

Internal and external sovereignty (note), 32 

Inherent in all nations as an essential attribute, 44-53 

It only attaches to the people as an entire society, 48 

Cannot be delegated, ,.,.... 48-49 

States in the United States not sovereign, 50 

People of a state or territory not sovereign, 5 L 

May exercise sovereign aulhoritj', etc., 52 

External and internal sovereignty, GO 

What pertains to each, 76-79 

But one sovereignty in nation, 103 

Idea of separate sovereignties dangerous, • 104 

All governmental authority is rooted and grounded on sovereignty 29!) 

As essential to a democracy as a monarcliy, 300 

But one sovereignty, and lliat is in tlie nation 300 

Questions of administration belong to sovereignty 302 

The existing states took their future political existence subject to the 

general authority, 304 

SPECIAL DELEGATED POWERS. 

Tliat is, subjects of jurisdiction enumerated, 1 75 

Residuary powers — meaning non-enumerated powers, 175 

STATE CITIZENS. 

now created, 306-303 

Is created by state enfranchisement, 321 

Must abide the political condition of the state, 322, 323 

Is carried into rebellion politically by the rebellion of the state, 323 

Political rights cease without any inquiry into individual loyalty, 323 

STATE— DoiiESTic Corporation. 

Government of, derives its authority from the nation, 52 

Are national institutions, ^ • •. ^2 



INDEX. 175 

STATE— Continued. PAOB. 

Exercise national authority in local and domestic matters, 52 

Not elements of the union, 52, 53 

Conduct under the confederation, 90-93 

Domestic tranquillity among tiiem, 94 

Condition before the revolution, 95, 96 

Tlieir political character, 9G 

Their administrative authority, etc., 102 

Instruments of internal administration, 129 

AVliy they were employed as such, 130 

Cannot regulate inter-state commerce, 192-1 9(5 

City of New York v. Miln, discussed; certain fallacies, 192-196 

Pass no law impairing tiie obligation of contracts, 214 

Limitation of state authority in that respect, 218 

Of the state, as a political corporation; its office, duties and powers, 

discussed, 298-326 

STATE— National. 

Definition of, 35 

A body corporate and politic, 36 

As members of the national family, 36 

Essentials to a sovereign state (note),.. . . , 36 

Laws fundamental to, etc., 37 

Governed by tlie law of nature, etc., 37 

Rights of — when perfect, 38 

Of the United States as a nation, 42 

STATE RIGHTS. 
The rights and authority of the people of the states to administer, etc., . . 143 
The question discussed, 298-326 

(THE) STATES AS POLITICAL ORGANIZATIONS. 

As political corporations they have no original or inherent authority,... . 293 

As political corporations are instruments of administration, 298 

All governmental powers are trusts 298 

Tlie autliority by which they administer belongs to the public 298 

Are a corporation of offices 299 

All governmental authority is vested in sovereignty, 299 

Sovereignty may delegate powers of administration, 299 

As essential to a democracy as a raonarcliy, 300 

But one sovereignty, many modes of administration — illustrated, 300 

Sovereigntj' in the nation alone, 301 

Questions of governmental administration belongs to sovereignty, 302 

Tlie authority to institute, determines by whom it shall be administered, 303 

Subordination of state institutions to the national sovereignty 304 

Authority of nation over the territories, 304 

Source and foundation of tliis authority, 305 

States created by the incorporating and enfranchising act of the nation, . 306 

The effect of such national act, 307 

"What constitutes a political state iu the union 307 



176 INDEX. 

STATES AS POLITICAL ORGANIZATIONS— C^onimwec?. 

PAaK, 

The authority which creates the state, assigns to it its limits 309 

Difference between state and national administrative authority, 309, 310 

National autliority of every citizen extends throughout the nation, 310 

Extent of the authority of general government, 311 

Autliority of a state citizen, 311 

Subordination of state authority by the institution of a national govern- 
ment, 312 

The state never had the prerogative powers as a nation, 313 

Illustrated by Mr. Jefferson in his demand tipon France, 313 

Effect of rebellion upon, 314, 317 

State of a political corporation, after losing its franchises, or its functions, 3lT 

Treason is political death, 316 

The state of Louisiana as an illustration, 317 

Tlie state as a political corporation, no part of the union or nation, 319 

National unity does not depend upon the political existence of states,. . . 319 

The creation or extinction of a state does not affect the nation, 319 

State is a political corporation, created for purpose of internal adminis-_ 

tration, 520-321 

It can acquire no rights as against the nation 320 

As political corporations all are equal, 321 

Each state has the same political status, 322 

A state may forfeit her status as sucli, .314-322 

People of a state taking their political status through the state, must fol- 
low its conditions, 321, 322 

When the nation proclaimed the rebellion, it proclaimed the political 

death of state, etc., 324 

Divers theories upon the subject, 324 

All acknowledge the same result practically, 324 

Amnesty proclamation (note), • . • . 324 

STEWART, JUDGE. 

Remarks on application of Vallandigham for writ of habeas corpus (note), 274 

SUFFRAGE. 

Right of, political and not civil, 114 

Conferred by society, not inherited, 114 

Political rights are powers, etc., 115 

Riglit to, rests in discretion, , 115 

Universal, not partial, 116 

Essential qualifications for, 116 

Government confers right to, upon classes, 117 

Disfranchises by classes, 117 

SUMNER, CHARLES. 

His views of the war power expressed in the United States senate, 257 

SUPREME COURT. 

To be one supreme court, 356 

Judges thereof, how appointed,... 358 



INDEX. 177 

SUPREME COURT— Continued. page. 

Tenure of office 358 

Jurisdiction, 360-365 

Appellate jurisdiction, 366 

TARIFF— Protectivk. 

Authority of congress to create, 182-184 

Does the general welfare require it, -183 

Pliilosophy of protection, 183 

No danger of domestic monopoly while free competition exists at home,. 184 

Necessary to protect American labor. against foreign pauper labor, 134 

Essential to au industrial and commercial independence, 184 

See also remarks on page, 188 

TANEY, ROGER B., CH. J. 
Habeas corpus. In re Merryman, 259, 260 

TAXES. 

Power of congress to lay and collect, etc., I'Jl 

For what purpose considered, IVl, 112 

See note on tliis subject, 1*12 

Term "taxes" defined, 180 

Taxes are direct or indirect, 180 

"What are direct taxes, etc. (see note), 180 

Congress has plenary power to tax every species of property (see i 

authority), 1 80, 1 81 

For what objects taxes may be laid and collected, 181, 182 

TENURE. 

Of the real property in England discussed, 208 

Effect on doctrine of indefeasible allegiance, 208-2 11 

Illustrated by history, etc., 209 

TERRITORY. 

Right to acquire, as a war power, etc., 250 

Necessarily incident to national sovereignty, 250 

Mr. Jefferson acquires Louisiana territory 250, 251 

Absurdity of the strict construction doctrine, illustrated, 251 

Authority of nation over, etc 308, 381-384 

Source and foundation of this authority, 305 

Authority to acquire, etc., 380 

Authority to legislate for, discussed, 382 

TREASON. 

In what treason against the United States consists, 280 

Under the British constitution, 281 

Different species of treason, 281, 282 

Secretary of state to Mr. Hinchmau on the subject of, 283 

Evils of the British system discussed, 281-285 

Attainder of treason, what, 285-287 

Effect of, 286 

Corruption of blood and forfeiture, 287, 288 

Trials for, where they may be had, 368 



0< 



178 INDEX. 

TREASURY NOTES. page. 

Issued under the war powers, etc., 248 

One of the necessary means, 247 

Power incident to sovereignty, 247 

The argument therefor, 243, 249 

TREATIES. 

Defects of confederation in respect to 93 

Power to make treaties under the constitution, 344 

Subject of treaties discussed, 344-348 

Practice in making treaties, 346-348 

TRIALS. 

By impeachment, etc., 131 

"Why the house tlie proper body to impeach, 132 

Character of tlie trial, ] 32, 133 

Effect of failure to convict on public morals, 133 

Courts of impeachment necessary, T 133 

Unfaithfulness on the part of public ofHcers, 134 

For treason, where they may be had, 368 

UNITED STATES. 

As a nation, 41 

When they became a nation, , 42 

Declaration of independence, effect of, 42 

Proclaimed by the authority of the people (note), 42 

As a civil government, 53 

VACANCIES IN OFFICE. 

How filled by president in vacation, 349 

Can he create vacancies by removals, discussed, 34D 

Can he create an office and appoint an officer during recess, 349 

VALLANDIGHAM, CLEMENT L. 

Application for writ of habeas corpus 274 

Remarks of Judge Stewart on such application (note), 274 

Nominated for governor of Ohio by the democratic party (note), 278 

VENUE. 
The place of trial for crimes must be in the state when the crime was 

committed, 368 

Crime of treason committed in several states and territories, 368 

Might try traitors where the act was committed 368 

If committed in the territories, in any state congress might by law pro- 
vide for, 368, 369 

VETO. 

The veto power of the president, 163 

Qualified veto power, 164 

Theory of the exercise of this power considered, 165 

Source and application of this power, in the king and in the president,.. 165 

King and president compared, 166 



J4AY4-1950 



INDEX. 179 

YETO— Continued. PAGE. 

The principle not applicable in the United States i 168 

Reasons for the existence of tliis qualified veto power in the president,. 169 

Not applicable on such grounds (note), ' 170 

And is liable to abuse, 170 

VICE-PRESIDENT OP UNITED STATES. 

President of the senate, ex officio, 152 

Term of office, 326 

How elected, 326 

Time of electing determined by congress, 327 

Constitutional qualifications, 327 

WAR. 

"Wliat is a public war, 244 

Offensive war, what, 245 

Defensive war, what, 245 

Riglit to declare war in congress, 244 

Causes for war to be determined by congress, 245-250 

For what causes allowable, 246 

For what purpose, 246 

May bo general or partial, 246 

Power to levy troops incident to war, 246 

Also power to command the means to carry it on 247 

To issue paper currency — treasury notes, 248 

WAR DEPARTMENT. 
Manifesto on the suspension of civil authority, 372, 273 

"WAR POWERS. 

Of the general government, 244-266 

Congress has power to declare war, etc., 244- 

Enumeration of war powers, 244 

Implied war powers, 246-249 

War powers of the president, 253 

As commander-in-chief, 252 

As executive head of the nation, 253 

WEIGHTS AND MEASURES. 

Congress to fix the standard of, 228 

Tliis authority slill exercised by the states, 223 




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